70 N.J. Eq. 501 | New York Court of Chancery | 1905
1. The allegations in the bill, to the effect that the covenant in relation to the part}’ wall was fraudulently inserted in the deed to the complainants without their knowledge or consent, are not only not proved to be true, but are proved to be false. Counsel for complainants on the argument abandoned all claim that the deed from Julius Meyer to the complainants should be reformed so as to excise the above-mentioned covenant. The claim of the complainants in this cause remaining for consideration is confined to the question whether, under the facts proved, allowing, the deed to stand unimpeached on the ground of fraud, and containing this covenant relating to the party wall, the complainants are entitled to an injunction against the defendant Lobsenz.
2. In December, 1899, the complainants were the equitable
“the said Julius Meyer caused to be constructed in the southerly wall of the said building twenty-two windows overlooking' the adjoining premises belonging to the said Meyer, and at the same time the said Meyer caused to be erected and constructed on the adjoining property on the south a one-story brick building to be used, and which is now used, for store purposes.”
The proofs show that, with all these windows opening upon his practically vacant lot, Julius Mej7er agreed to sell the corner lot, with its building, and tlie equitable title created by this agreement became vested in the complainants. The contract
When the complainants made their contract with Weinberger, upon which they made a substantial payment,- they supposed that the entire wall rested upon the twenty-five-foot lot which by the contract they were to acquire. Their counsel, however, discovered what the situation of the wall was, and thereupon he informed the complainants, and a survey was made which showed all parties the true location of the wall—that the wall stood manifestly as a party wall. What relief the complainants would have been entitled to in a court of equity on the ground of mistake or on the ground of fraud if they had made complaint immediately upon making this discovery we need not discuss. Eor need we discuss the nature and extent of the rights which the complainants and Julius Meyer, respectively, would have enjoyed in respect of this wall, and particularly in respect of the windows therein, in case the deed from Julius Meyer to the complainant had followed the agreement and had conveyed the corner lot, twenty-five feet by one hundred, with the brick building erected thereon. Wlikt the complainants might have done, what rights they would have enjoyed, whether the complainants did or did not place themselves in a worse position by accepting the deed which finally they did accept, or whether that deed, with its covenant in reference to the party wall, merely expressed what would have been implied in ease such covenant had not been inserted in the deed—these are all questions which may be dismissed without consideration.
What the parties, with full knowledge of the facts, did was
“It is hereby stipulated and agreed by the said parties, for themselves, their heirs, executors, administrators and assigns, that the wall on the southerly side of the building on the lot herein conveyed, which wall is sixteen inches wide at the first story, eight inches on the lot herein conveyed and eight inches on the lot adjoining, and twelve inches above the first story, seven and one-half inches on the lot herein conveyed and four and one-half inches on the lot adjoining, shall be a party wall, and both parties entitled to rights therein, the party of the first part owning the said lot adjoining.”
Subsequently Julius Meyer conveyed the vacant lot to the defendant Lobsenz, who confessedly occupies, with respect to this controversy, the same position that Julius Meyer would have occupied if he had retained the ownership of the vacant lot.
The dispute between the parties in this cause has not arisen from any attempt on the part of either Meyer or Lobsenz to use the wall in question as a party wall, and by such use to obstruct the passage of light and air through the complainants5 windows. The defendant Lobsenz claims the right to block up these windows with thin brick walls, erecting the same upon the windowsills without trespassing upon the land of the complainants. The complainants allege that Lobsenz has sought to compel them to pay him for the privilege of maintaining the windows. Lobsenz alleges that the tenants of the complainants have thrown articles out of the windows upon his lot, and have also trespassed upon the roof of his one-story building, causing the roof to leak, &c. These matters, however, seem to be of no importance. If the complainants are entitled to an ¡easement of light and air, the defendant Lobsenz cannot be permitted to interfere with that easement by blocking up the windows for the purpose of protecting his property from trespass through the windows. Bloom v. Koch, 63 N. J. Eq. (18 Dick.) 10 (1902).
Excluding from consideration both the fact that this wall from its position and size appears to have been designed as a party wall, and the express covenant relating to the wall con
It may be that the doctrine under which the easement of light and air is created by an implied grant or an implied reservation ought not to be extended. The rule -which permits an implied reservation of this easement has been criticised by Vice-Chancellor Pitney (Toothe v. Bryce, supra), in which criticism Vice-Chancellor Stevens seems to concur. Denman v. Mentz, 63 N. J. Eq. (18 Dick.) 613, 618, 617 (1902). To many minds, the rule prevailing in Massachusetts and in other states that in cases like the present one the easement of light and air can only be created by an express grant or an express reservation may seem more consistent with the American view of this easement and less liable to produce situations of hardship and injustice than the rule which prevails in blew Jersey. See Keats v. Hugo, 115 Mass. 204 (1874).
But the duty of this court, whatever may be the views of individual judges, is to fairly apply the established law of the state. That law, leaving out of view the party wall, gives the complainants the easement which they claim, and entitles the complainants to the remedy of an injunction to protect the enjoyment of their easement from fhe conduct of the defendant Lobsenz in blocking up their windows. The narrow question is whether the existence of the party wall under this express covenant in the deed makes the case an exception to the .general rule so as to prevent the deed in which the covenant appears from creating the easement of light and air by implication by an implied grant.
The other way in which an express covenant may operate to prevent the grant of an easement by implication is exhibited where the rights created by the express covenant are-inconsistent with the enjoyment of the easement. The maxim expressuni facit cessare taciturn also applies to this class of cases, but manifestly for a different reason from that which sustains its application to the class of cases first above mentioned. In Denman v. Mentz, 168-N. j. Eq. (18. Dick.) 613 (1902), an express covenant against encumbrances was held to prevent the creation of an easement of light and air for the benefit of the grantor’s building by an implied reservation. A covenant on the part of the grantor that the granted land was free from all encumbrances was held to be inconsistent with an implied provision to be read into the instrument creating an encumbrance.
I do not find that the existence of this party wall and of the express covenant in relation to it contained in the deed is inconsistent with the establishment of an easement of light and air in some form. Let it be assumed that the covenant gives the defendant Lobsenz the right to close up all the windows, so as to make the entire wall solid at all points and equally capable
There seems to be no reason why an easement of light and air may not be created which shall be determinable upon the happening of some condition within the control of the- parties to the instrument, by which, expressly or impliedly, the easement is created.
The easement in its ordinary form is liable to prove a somewhat uncertain and even transient form of property. In order to its continued enjoyment the windows to which it relates must be maintained without change of location. The value of the easement may depend upon the maintenance of a frail and ruinous building, or the ability of the owner of the dominant
There is no reason why an easement of light and air cannot be expressly granted so as to endure for the benefit of windows through a party wall until such party wall shall be applied to the use of an adjacent building. This, I think, is precisely what these contracting parties did. The implied grant of the easement of light and air is modified by the express covenant to the extent that the accomplishment of all the objects of the covenant—the enjoyment of all the rights created by it—imposes such modification.. The complainants, I think, have a right to the enjoyment of this easement until the defendant Lobsenz, in the exercise of his right to use the wall as a party wall (whatever the extent of that right may be), shall necessarily modify or destroy the’complainants’ right.
Inasmuch as the defendant Lobsenz has threatened to wall up the complainants’ windows, not for the purpose of any use of the wall by him as a party wall, but merely for the purpose of shutting off the complainants’ light and air, and blocking up openings through which persons may go and objects may be discharged from the complainants’ building onto his (Lobsenz’s) premises, the complainants, I think, are entitled to an injunction. The decree will not attempt to construe this covenant so . as to define the extent of the defendant Lobsenz’s right to use the wall as a. party wall, because’ this court in this case has no jurisdiction of that matter. The conduct of the defendant com
3. Counsel for defendants urges that the defendant Julius Meyer is entitled to have the bill dismissed as to him, with costs, inasmuch as the charge of fraud, in respect of the covenant relating to the party wall contained in the deed from him to the complainants, has been disproved and abandoned. Julius Meyer, however, has defended this whole case jointly with the defendant Lobsenz, a single joint answer being filed. Moreover, it appears that Meyer conveyed the servient tenement to Lobsenz, and for all that appears he may have given a covenant against encumbrances. However that may be, Meyer has defended the whole ease precisely as Lobsenz has defended it, and there are indications that he was interested .in some way in defeating the complainants’ claim, not only to a reformation of their deed, but to the remedy of an injunction. On the other hand, a large part of the expense of this cause has been caused by the false charge of fraud contained in the complainants’ bill on which they founded their prayer that their deed from Meyer should be reformed. Hnder the circumstances, each party having partly succeeded, no costs will be allowed to either.