23 N.Y.S. 818 | The Superior Court of the City of New York and Buffalo | 1892
Alexander L. Stewart, in the year 1816, was the owner in fee of a large piece of ground, which he caused to be cut
It is conceded that the different abutting owners acquired easements or rights of way over the surface of the alley for ingress and egress, and the question now presented is as to their rights in and to the soil under the surface of the alley. It arises in this manner: In July, 1891, the defendant tore down the building on his lot, and rebuilt, covering the alleyway as before. He built the party wall thicker and carried it higher and further back than the one erected
It appears that Stewart, the common source of title, devoted the alley to the use of the abutting lots, the right to continue forever. He laid the alley out on his map, and marked out the lots abutting on it, and sold them in conformity to that map, .and in this way dedi
While it is an established principle that nothing passes as an incident to the grant of an easement but what is requisite to its fair enjoyment, the plaintiffs seek to maintain a recovery on the theory that the plaintiffs have some estate in the alley, acquired by the dedication of the alley. They claim: (1) That when Stewart, by the terms of his deeds to the abutting owners, set apart this alley for the use of said lots “forever,” he intended to dedicate it for that purpose, and did not intend to retain the ownership of the soil. Welsh v. Taylor, (N. Y. App.) 31 N. E. Rep. 896. (2) That, not having reserved any fee in the alley, the doctrine of dedication concludes him from asserting his former title, (Ger. Real Estate, 3d Ed., 736,) on the equitable principle of estoppel, (Id.; Wiggins v. McCleary, 49 N. Y. 346; Taylor v. Hepper, 2 Hun, 646, affirmed 62 N. Y. 649.) The trend of argument leads to the conclusion that the fee in the alley, subject to the easements, remained in Stewart until all the adjoining lots were sold and conveyed, and was then held in abeyance, or in gremio legis, or else in nubibus, subject to
In this case the rights of the grantees were not left to implication, but were specifically expressed to be a mere right of passage over the land, and this privilege is not to be enlarged or extended into a larger or greater interest. It is claimed that where a vendor sells city property with reference to a map or plat on which streets, etc., are laid down in the vicinity of lots sold, the law presumes that the vendor has obtained an enhanced value therefor, and impliedly grants to the purchaser the right and privilege of having such streets, etc.; that it operates immediately in the nature of an estoppel, upon the principle that to retract the promise implied by such conduct would operate as a fraud, (Watertown v. Cowen, 4 Paige, 510; Livingston v. Mayor, 8 Wend. 86; Cincinnati v. White, 6 Pet. 431;) that a dedication of land for a private alley is a dedication of it to the use of the persons who shall thereafter become owners of the lots in the plat, but not to the use of owners of land situate elsewhere, (Cihak v. Klekr, 17 Ill. App. 124;) and that, after conveying all the land abutting the alley, the owner of the common source of title cannot grant new rights
The defendant has cited a number of cases,—among them Atkins v. Boardman, 2 Metc. (Mass.) 457, wherein the owner of two parcels conveyed one of these parcels, bounding it “by a passageway of about five feet wide,” and reserving a right of ingress and egress through the same. The grantee attempted to place a covering over the alley, and application was made to restrain him. It was held that the owner of land over which his grantor had reserved a passageway may lawfully cover such passageway with a building, if he leaves a space so wide, high, and light that the way is substantially as convenient as before for the purpose for which it was reserved. See, also, Burnham v. Nevins, 144 Mass. 88, 10 N. E. Rep. 494; Sutton v. Groll, 42 N. J. Eq. 213, 5 Atl. Rep. 901. But, like Grafton v. Moir, 130 N. Y. 465, 29 N. E. Rep. 974, these were cases where the owner of the fee attempted to make use of open spaces reserved as alleyways, in a manner not inconsistent with the easements charged thereon; and the courts uniformly held that, so long as the holders of the right of way had convenient access to enjoy the liberties granted, their rights were not infringed upon, and they had no grievance requiring redress. Those cases hardly reach the point which is presented here, i. e. between abutting owners, with rights of way only, neither having anything in the nature of a profit a pendre, but restricted to uses specifically designated. 2 Wait, Act. & Def. 659. The presumption as to the adjoining owners taking title to the middle of the alley is destroyed by the fact that those abutting the alley had mere easements, in connection with other occupants in the rear, possessing the same rights as those vested in either the plaintiffs or defendant.
The fact that in two of the mesne conveyances in plaintiffs’ chain
The temporary injunction having been vacated, and the defendant permitted to complete his work on giving a bond to pay any damages that might be recovered, the action has practically resolved itself into one involving the plaintiffs’ right to that form of relief. One who has a right of way may maintain case for its disturbance. Allen v. Ormond, 8 East, 4; 3 Bl. Comm. 241; Wood, Nuis. 172; Welsh v. Taylor, 50 Hun, 137, 2 N. Y. Supp. 815. But, in the absence of actual damages specifically proved, those recoverable are nominal only. There is a broad distinction between an injury to a right incident to property, and an injury to the property itself; the latter, unlike the former, being capable of estimation enabling the correct amount to be fixed and awarded as compensation for the wrong. The plaintiffs, having no present title to the soil under the alley, can recover nothing for the defendant’s use of the space thereunder, although, perhaps, unauthorized.
The other phases of the case must next be considered. The defendant had the right to extend his building back upon his lot, and to build it as high as he pleased to go; and if, in exercising these legal rights, the plaintiffs have been inconvenienced by the shutting out of light and air, they are without a remedy. Radcliff v. Mayor, 4 N. Y. 195. And see Griffiths v. Morrison, 106 N. Y. 165, 12 N. E. Rep. 580. The plaintiffs acquired no monopoly of light or air public! juris, by grant, prescription, or otherwise, and have no ground of complaint in respect thereto. Myers v. Gemmel, 10 Barb. 537; Shipman v. Beers, 2 Abb. N. C. 435. The building erected by the defendant covers his own land. If he had attempted to' build upon an open space dedicated to a courtyard, (Myers v. Gemmel, supra,) or had built upon the yard of a house appurtenant to a demise, (Doyle v. Lord, 64 N. Y. 432,) a different question would have arisen. The policy of the law is to encourage the most advantageous use of land, and courts will not be diligent in searching for pretexts with which to check the enterprise .of an owner of the fee, at the behest of one who is not actually interfered with in the proper enjoyment of an easement. Johnson v. Association, 122 N. Y., at page 336, 25 N. E. Rep., at page 584. The grant and the covenants of the grantor are the precise measure of the plaintiffs’ right, (Bliss v. Greeley, 45 N. Y. 671,) and these are silent as to light and air. The fact that the plaintiffs have enjoyed light and air for a period of 50 years is unavailing to secure to them an easement to the enjoyment of that privilege. It is well settled that the doctrine of “ancient lights” does not obtain in this country. Vide supra; Mahan v. Brown, 13 Wend. 260; Parker v. Foote, 19 Wend. 309; Richardson v. Pond, 15 Gray, 387; Cherry v. Stein, 11 Md. 1;