24 N.Y.S. 997 | N.Y. Sup. Ct. | 1893
Lead Opinion
The controversy between plaintiff and defendants, who are adjoining lot owners, relates primarily to the location of a boundary line. Defendants say that the line extends through the center of the wall, which has been for many years used in precisely the same manner as are party walls; the timbers of the buildings on either side resting in and being supported by it. Plaintiff, admitting that defendants’ user of the wall has been so long continued as to have created an easement, which secures to him the right to such use as he now makes of the wall, insists that it is not a party wall, but wholly on the lands of the plaintiff, and for that reason it cannot be interfered with in any action it may see ñt to take with reference to the wall, so long as defendants are not interfered with in the enjoyment of their easement. It seems that prior to about 1850 plaintiff’s building was
The determination of the learned trial judge seems well founded. It is true that plaintiff’s deed, assuming its westerly boundary line to be correctly located, calls for a frontage that included the entire wall, instead of one-half of it; and, as there is no record of conveyance from plaintiff or his predecessors in title of the six inches in controversy, plaintiff insists that its right to it cannot be questioned. Defendants’ contention is that in 1815 plaintiff’s and defendants’ predecessors in title located the boundary line in the “center of the brickwork of said wall,” and that from that time until the commencement of this action, a period of about 75 years, such practical location of the line was acquiesced in by the parties to the original location and their grantees. If it is legally established in the record before us that the facts are as defendants contend in such respect, then the case is clearly brought within the settled rule which forbids the disturbance of a practical location which has been acquiesced in for a long series of years,—a rule adopted as one of repose, and which rests upon the same reason as the statute prohibiting the disturbance of an adverse possession which has continued for 20 years. Baldwin v. Brown, 16 N. Y. 359; Reed v. Farr, 35 N. Y. 113; Avery v. Woolen Co., 82 N. Y. 583. We are thus brought to a consideration of the evidence introduced for the purpose of establishing a practical location. The defendants put in evidence a writing under seal, which was neither acknowledged nor recorded, of which the following is a copy:
“Whereas, the boundary line which divides the lot o£ ground on the south side of State street, owned by Joseph Alexander and his wife, Ann Alexander, from the lot of ground owned by the heirs of Henry Hogan, deceased, is not precisely ascertained and known; and whereas, the said Joseph Alexander and Ann Alexander are about erecting a building on their said lot of ground, which renders it desirable that the said boundary line should be settled:*999 Now, therefore, to the end that the said boundary line may be amicably ascertained, settled, and established, the said Joseph Alexander and Ann Alexander, for themselves, their heirs, executors, administrators, and assigns, of the first part, and Nelly Hogan and William Brown, Dorothy Brown and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nelly Hogan, Henry Hogan, and Martina Brown were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement; that is to say: First. The said party of the first part shall have full liberty to place the west wall of the building, which they are now erecting, as near to the east wall of the building, now occupied by the party of the second part, as they shall or may choose to do, and to build and finish the same in any manner they please, without molestation or hindrance from the said party of the second part, or any person or persons by their direction, or claiming under them. Second. The center of the brickwork of the said wall, when so built by the party of the first part at their own expense, and a corresponding line drawn to the south bounds of said lots, shall forever hereafter be allowed and acknowledged by both the parties to this agreement, and all persons claiming under, to be the true division line between the aforesaid lots of ground. Third. The said party of the second part, or their heirs and assigns, shall have full liberty, whenever they may choose to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto, and finish thereon, in any manner they may choose to do; also to build upon and raise higher the said division wall, or extend the same farther south, so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their directions, or claiming under them: provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or .injure the same. Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons by their direction, or claiming under them, shall have liberty to pull down or demolish any part of the said division wall without consent of the other first had and obtained.
“In witness whereof the parties to this agreement have severally set their hands and seals this-day of May, one thousand eight hundred and fifteen, to these presents.
“Joseph Alexander. William Brown.
“Ann Alexander Dorothy Brown.
“Nelly Hogan. Eleanor Brown.
“The words ‘or their heirs'and assigns,’ in the first line of the third article, were interlined before execution.
“Signed, sealed, and delivered in presence of “James La Grange.
“Peter Lansing, Jr.”
The plaintiff in due season objected to the introduction of the agreement, and the exception taken to the ruling admitting it will be first considered. When offered, the testimony showed that the signature of plaintiff’s grantor to the agreement of 1815 was in his handwriting; that each of the adjoining owners entered into possession of the half of the wall next adjoining him by inserting therein the necessary timbers for his building. The agreement offered was found by defendants among their muniments of title in 1874 or 1875; and plaintiff about the same time found a duplicate thereof among the deeds and papers which it had received at the time of taking title. Under the circumstances proven it was clearly not error to receive in evidence as an ancient writing, and without proof of execution, this agreement.
The judgment should be affirmed.
PUTNAM, J., concurs.
Dissenting Opinion
(dissenting.) This is an appeal from a judgment entered upon the decision of the trial judge in favor of the defendants. The action was to restrain the defendants from closing up or obstructing windows left by the plaintiff in the westerly
The defendants offered in evidence on the trial an instrument in writing dated in May, 1815, which was not acknowledged or recorded, purporting to have been made by Alexander, the mortgagor under whose mortgage plaintiff claims title, and the heirs of Henry Hogan, from whom, through certain mesne conveyances, the defendants claim title, of which the following is a copy:
“Whereas, the boundary line which divides the lot of ground on the south side of State street, owned by Joseph Alexander and his wife, Ann Alexander, from the lot owned by the heirs of Henry Hogan, deceased, is not precisely ascertained and known; and whereas, the said Joseph Alexander and Ann Alexander are about to erect a building on their said^ lot of ground, which renders it desirable that the said boundary line shall be settled: Now, therefore, to the end that said boundary line may be amicably ascertained, settled, and established, the said Joseph Alexander and Ann Alexander, for themselves, their heirs, executors, administrators, and assigns, of the first part, and Nellie Hogan, William Brown, Dorothy Brown, and Eleanor Brown, heirs of Henry Hogan and Martina Brown, deceased, which said Nellie Hogan, Henry Hogan, and Martina Brown were and are the heirs of William Hogan, deceased, of the second part, do enter into the following articles of agreement; that is to say: First. The said party of the first part shall have full liberty to place the west wall of the building which they are now erecting as near the east wall of the building now occupied by the party of the second part as they shall or may choose to do, and to build and finish the same in any manner they please, without molestation or hindrance from the said party of the second part, or any person or persons by their directions, or claiming under them. Second. The center of the brickwork of said wall, when so built by the party of the first part at their own expense, -and a corresponding line drawn to the south bounds of said lot, shall forever hereafter be allowed and acknowledged by both parties to this agreement, and all persons claiming under them, to be the true division line between the aforesaid lots of ground. Third. The said party of the second part, or their heirs and assigns, shall have full liberty, whenever they may choose to erect a building on their said lot of ground, to join the front and rear walls of such building to the wall built as aforesaid by the party of the first part, and to fasten thereto in any .manner they may choose to do; also to build upon and raise higher the said division wall, or extend the same farther south, so as to suit their own convenience in building, but at their own expense, without molestation or hindrance from the said party of the first part, or any person or persons by their direction, or claiming under them: provided, however, that the said party of the second part shall not break down any part of said division wall, or in any manner unnecessarily mar or injure the same. Fourth. Each of the parties to this agreement shall keep in repair their own half of the said division wall, and neither party, or any person or persons by their direction, or claiming under them, shall have liberty to pull down or demolish any part of said division wall without the consent of the other first had and obtained.”
The evidence shows that this agreement was in the possession of the defendants, with their other evidences of title, from the time of their purchase of their premises in 1874; and it is insisted that under the circumstances it was properly received in evidence, without proof of its execution, as an ancient writing. This paper purports to have been executed in 1815, and was offered and received in evidence in 1890, 75 years after it bears date. This long interval made it clearly an ancient writing, within the authorities, especially as the wall or line to which defendants claim it relates has remained in part in the possession of the defendants or persons through whom they derive their title, since 1840, as shown by the undisputed evidence in the case. The rule upon this subject seems well settled, both in this country and in England, that when possession accompanies the paper it proves itself, if an ancient writing. In Hewlett v. Cock, 7 Wend. 371, Nelson, J., in delivering the opinion of the court, after an extensive review of the authorities at that time, says: “Possession accompanying the deed is always sufficient without other proof, but it is hot indispensable.” In that case the lease which was offered in evidence as an ancient document' was found among the muniments of the title of the farm of which the premises in question was a part 50 years before the trial, and a new trial was ordered because the trial judge refused it in evidence without proof of execution. We are therefore of the opinion that it was not error in this case .to receive this writing, without proof of execution, especially as the execution of one of the mortgages was proved by competent evidence of the genuineness of the signature.-
But the more serious question as to its admissibility against this plaintiff, as it seems to us, is as to its competency as against this plaintiff, who, so far as the case shows, purchased at the mortgage sale, without any notice, either actual or constructive, of the existence of this contract. The plaintiff, in its complaint, claims title to this entire wall, derived under a foreclosure of a mortgage in which there was.no notice of the existence of the claim now made by the defendants; that this was a party wall, and at the time of the execution of said mortgage and at the time of the purchase by the plaintiff no actual or constructive notice was given of the existence of any adverse claim. If this claim can be proved and established by this instrument, the plaintiff will lose, not only the six inches of land in dispute, but the title to and control of lands
But it is insisted by the defendants that this agreement conveyed no land, and therefore was not required to be recorded, and that subsequent purchasers or incumbrancers were not entitled to notice of its existence. But it would seem that, if it conveyed no land, or any interest in land, it would not be a contract or agreement running with land so as to bind such subsequent incumbrancers or purchasers. The rule seems well settled that such contracts or covenants are personal, and do not run with the land. In Cole v. Hughes, 54 N. Y. 444, the court seem clearly to assert that, doctrine, and quote with approbation the language of Wilde, J., in Hurd v. Curtis, 19 Pick. 459: “That no covenant can run with the land, so as to bind the' assignee to perform it, unless there was a privity of estate between the covenantor and covenantee;” and that this rule “was without exception.” And the same case quotes the following from Washburn on Real Property, (4th Ed., p. 284:) “That “when one who makes a covenant with another in respect to land neither parts with nor receives any title or interest in the land at the same time with and as a part of making the covenant, it is at best a mere personal one, which does not bind bis assignees; and that such covenants, and such only, run with land as concern the land itself, in whosesoever hands it may be.’” If, therefore, within this rule, no title or interest in land passed from or to Alexander, the mortgagor, by this writing, then none of its obligations would attach to the land in the hands of the purchaser under .his mortgage. If we are right in our conclusion that this writing was not competent evidence as against the plaintiff, and that a practical location of the line between the plaintiff and defendants was not established by it, then it follows that, as the front of plaintiff’s land on State street called for by its deed is 53 feet 10 inches, and the width of plaintiff’s bank building from Douw’s line to the westerly side of plaintiff’s west wall was 51 feet inches, the whole of said westerly wall built by plaintiff is on plaintiff’s land. But it is further urged by the defendants that this wall in dispute is, and always has been, used as a party wall between the plaintiff and defendants, and that, therefore, all the rights and incidents of a party wall attach to the same. The evidence in this case shows that the wall in dispute has been the dividing wall between the premises of the plaintiff and defendants at least since 1840, and that the buildings on either side have connected with it by inserting beams and timbers in it for support. This furnishes prima facie evidence that the wall in question is. and has been used as a party wall, and belongs equally to the plaintiff and defendants. In Sherred v. Cisco, 4 Sandf. 490, the court lays down the rule upon this subject as follows:
“The principle of the decisions is that, while the common user is presumptive evidence of a tenancy in common in the land and wall, that presumption is rebutted by proof of the precise extent of the land originally belong-*1006 tug to each owner, and each then is deemed the exclusive owner of so much of the wall as stands on his own land.”
In Schile v. Brokhahus, 80 N. Y. 614, Church, C. J., says:
“The old wall, from long user, in the absence of evidence must be deemed a party wall, presumptively, either from an agreement to that effect, or from its being built upon the line for that purpose by the respective owners.”
But a fee will not be implied from user when' an easement only will secure the privilege enjoyed, (Roe v. Strong, 107 N. Y. 350, 14 N. E. Rep. 294;) and when, as in this case, the plaintiff establishes a clear evidence of title in itself to the locus in quo, the occupancy by the defendant, unsupported by title paramount to that of the plaintiff, must, it seems to me, be but a user, and as such valid to the extent that it has been enjoyed for so long a period of time, but without the aid of the writing which we have excluded, limited to that extent, and ineffectual to prevent the plaintiff from running the wall up on the same foundation, with or without windows, and that any interference by the defendants by filling up such windows or building another wall resting upon the plaintiff against such windows is a violation of the plaintiff’s 'property rights, and a permanent assumption of the use of this wall, for which an injunction might issue. It will be seen that the success of the contention of the respective parties to this action largely depends upon the question whether the instrument in writing put in evidence by the defendants under the objection of the plaintiff, and which we hold incompetent, and the admission of which, by the trial judge, we have reached a conclusion, was error, disposes of tils question in favor of the plaintiff, for which this judgment should be reversed. Judgment reversed, and a new trial granted, costs to abide the event.