On and-before 1st Feb. 1849, Mr. Gemmel was seised in fee of the corner house and lot on the east side of
The counsel for the defendant, with that fairness and boldness for which he is distinguished, admitted that he could not sustain the appeal if the decisions made in England for the last fifty years, as to the right to light,, are to control this case, and the counsel for the plaintiff admitted, with equal fairness, that he did not rely on any covenant, express or implied, on the part of the landlord, and accordingly that the landlord was not liable for any injury resulting from the erection of De Forrest. There was no express covenant applicable to the case, and since the revised statutes have declared that no covenant shall be implied in any conveyance of real estate, and that the term “ real estate” is eo-extensive in meaning with, “lands, tenements and hereditaments,” (1 R. S. 738, § 140; p. 750, § 10 ;) it is at least probable that no covenant could be implied. The ground assumed by theplaintiff is, that a part of the thing actually de•mised, was the right in the Broadway lot to derive light and air from the Beade-street lot; in other words, that by the act of the common owner of the lots, this right had been made part of the Broadway house and lot, and so would pass in any lease or conveyance of that lot.
With "us there was no room-for any such presumption. In
A law inapplicable to the condition of the country for so long a period, could not belong to that part of the common law which we brought with us, namely, “ so much only as was applicable to our condition,” nor as “ part of the law of the colony on 19th April, 1775.” And if it could be considered as lying dormant, it could be revived only in such forms and under such circumstances as the habits of the community, and a just regard to the previous general practice and understanding would require. The streets in our cities have been generally broad enough to afford an abundance of light, so far as the front of the house is concerned; the lots were generally, too, laid out of such depth as to secure ample light from the rear. And when additional lights have been left on the sides, they have not been considered as giving rights over the adjoining owner’s land, but each owner, as his own interest has dictated, has occupied the whole of his own ground. It is against the spirit of our people to incumber their lands with privileges in favor of other, though adjoining lands, whether held by them or others; what they own they wish to own absolutely, without being subject to any rights in any other, and to be at liberty to sell or retain each part free from control from the other. 1 They are proverbially distinguished for looking to the future, and as they
If (as in Jones’ Court, and in Jauncey Court in Wall-street, in this city,) buildings are erected occupying the four sides of the lot, with an open space in the middle for light and air, which is free to the occupants of all the rooms in the adjoining buildings, with a common entrance for all, and separate apartments are then let out to different tenants, the owner may well be considered to have dedicated that open space for the benefit of all the tenants ; the intention to do so would be undoubted—it would be only necessary to show the place or a plan of it, to obtain the admission of all, that such was the intention. So, also, by the devise of a mill; the right to use the water that moves it may well pass as part of that which was meant by the words used: and if a stream runs through land sold, and also through adjoining land, the right to have it continue» to flow, and that it should not be diverted, would pass as part of what was clearly intended to be granted. On this principle, the case of Story v. Odin, (12 Mass. 157,) may well have been approved where-ever it was referred to ; although in some instances, it has been quoted to sustain the present English doctrine. There the
The form of the Broadway building also showed to the tenant that the landlord had constructed it so as to secure to it a definite quantity of light and air within its proper bounds, and that it was not to depend on deriving either from other sources. The extreme rear adjoining the Reade-street property, though between 23 and 30 feet above the Reade-street houses,
The counsel for the plaintiff did not state whether in his view Mr. Gemmel would have retained this privilege as belonging to his Broadway lot if he had retained that lot and sold the Beadestreet lots to another person; yet if from the construction of the building that privilege had become part of the Broadway lot so as to pass by a simple grant or lease of that lot, that result would seem to follow; and it is probable that such is the English law in such cases; and that the right does not depend on which is first sold by the common owner of the two lots. Such is the opinion of Gale and Whatley in their valuable “ Treatise on Easements.” They say: “ the obligation is imposed equally on the grantee and the grantor,” (p. 50.) They add, (p. 51,) that “ the. only opposition to the current of authority that this disposition is binding equally on the grantor and grantee and the parties claiming under them respectively, is a dictum of Lord Holt in the case of Tenant v. Goodwin, as reported by L. Raymond,” and the cases quoted, and the principles Stated by them seem to sustain their view (see lb. p. 51 to 77.) Such was the opinion of Twisdeh, J. in Palmer v. Fletcher, (1 Lev. 122,) and the decision in Riviere v. Bower, (1 Ryan & Moody, 24,)
A rule thus blindly fettering estates Avithout any written evidence of right, and equally annoying to buyer and seller, should not be adopted here unless it is clearly, the Iuav of our own state. Justice Bronson showed in the case of Parker v. Foote in 19 Wend. 309, that the English laAV as to lights does not apply to this country; and ayc would have simply referred to that decision, but that it Avas truly said that that case ivas also decided on another point; still the chief justice expressly concurred Avith him on that point, and it is believed that that part of the opinion Avas received at the time with cordial approbation by the public and the bar. Vice Chr. Sandford, in Banks y. American Tract Society, (4 Sandford’s Ch. R. 465,) admits that such “ is probably to be deemed the decision of the court,” but declined expressing an opinion Avhether it was an open question or not, and said still less did he mean to intimate a bias either Avay. He has since published the 2d vol. of the Superior Court Beports, of which court he is a distinguished member, and without expressing any dissent, gives the decision of that court in the case of Palmer v. Wetmore, and states the point decided to be that á landlord AArho OAvns land adjoining the demised premises has a right to build on such land, though he may thereby obstruct and darken the windoAvs in the tenement demised (p. 316.) Authority as Avell as principle show that to be the law of this state.
The order appealed from should be reversed with costs, and the injunction be dissolved.
Edwards J. concurred.
Esmonds, P. J. dissented.
Qrder reversed.