181 A.D. 348 | N.Y. App. Div. | 1918
Lead Opinion
In 1870, Nos. 15, 17 and 19 Irving place were separate dwelling houses and were at that time leased by their several owners to one Wehrle, who connected the buildings, using them as a hotel. When the leases expired in 1881, premises Nos. 15 and 17 were leased to the same lessees, who used the two as a hotel, premises No. 19 being used as a private dwelling. This continued until 1890, when the three premises were again united in one tenant and conducted as a hotel, and have been so conducted to the present date.
The plaintiffs are-owners of premises No. 15 Irving place and the defendant is owner of premises Nos. 17 and 19 Irving place. The tenant of these three premises surrendered his' lease of premises Nos. 17 and 19 to the defendant and gave him permission to erect a partition wall which would cut off premises No. 15 from premises Nos. 17 and 19.
The Special Term decided that the plaintiffs were entitled to an injunction on the ground that there had arisen an easement by necessity, and while the physical destruction of the property or a substantial change in it so that it could not subserve its original purpose would terminate the easement, the easement attaching to the buildings and not to the soil, there was not sufficient evidence that the buildings were at the present time unsuited for hotel purposes.
The court has found that the facilities of premises Nos. 17 and 19 are essential to the enjoyment of premises No. 15, saying: “ If a partition wall should be put on the dividing line between Nos. 15 and 17, as is threatened by the defendant, the house on No. 15 would occupy the whole lot, would have no front entrance or hallway, no elevator or kitchen range, or kitchen chimney or heating plant or water supply or electric light.”
“ The elevator, heating plant, ranges, boilers, kitchen flue, electric meter, pump and hot water tank and other fixtures and the use of the public rooms and hallway contained in Nos. 17 and 19 [are] necessary to the reasonable enjoyment of No. 15.”
■ These facts are insufficient to establish an easement of necessity, even if the other essentials to the creating of an easement had been present. Structural changes that would
No easement exists in this case. Except in the case of certain relations that are recognized and enforced in equity, in analogy to the principles.of law applicable to easements, an easement can be created only by a grant express or implied, or by prescription, and the latter, as modified by the modern doctrine, rests upon the presumption of a grant. In the case at bar there was never a grant from an owner of either parcel to the other, nor was the property at any time used by a common owner of the fee for hotel purposes.
The cases relied on by the respondents and those cited by Mr. Justice Scott may be divided into two classes: First, where an owner of land has, by an artificial arrangement prior to a severance, effected an advantage to one portion, to the burdening of the other, upon the severance of the ownership the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance; second, where an easement has been established by prescription. In the first class are the following: Humphries v. Brogden (12 Q. B. 739); Doe v. Morrell (J. Smith [N. H.], 255); Adams v.
Many cases are cited by the respondents where an easement has been acquired over adjoining property by prescription. No purpose will be served by reviewing them in detail. The modern law of rights acquired by prescription rests upon the adverse user, for which no permission can be shown, for such a length of time that a grant will be presumed, which has been lost. In other words, adverse user will ripen into an easement, as adverse possession would establish a title and upon the same theory of law. It also follows that if the use is exercised by permission, no matter how long the use may be, it cannot ripen into a permanent right; for, as was said by Judge Cowen, “It is well known that a single lisp of
This brings us to the question whether the plaintiffs, owners of lot No. 15, have acquired an easement by prescription against the defendant owner of lots Nos. 17 and 19. It is true that a tenant or succeeding tenants might by adverse use of property for the statutory period create prescriptive rights in adjoining property which would inure to the benefit of their landlord, but there is clearly no adverse user by the tenant of lot No. 15 when he uses the adjoining premises, lots Nos. 17 and 19, with the express permission of the owner thereof; and still less is there an adverse use by the tenant of lot No. 15 of premises Nos. 17 and 19 when any use of premises Nos. 17 and 19 was made by the tenant of lot No. 15 under a lease of premises Nos. 17 and 19 which gave him express permission to make the use of it that was made. The latter is true, because a tenant cannot hold adversely to or prescribe against his landlord. (Jones v. Reilly, 174 N. Y. 97.) It should be noted in this connection that the court made the following finding in its decision: “ All these structural changes were made by the tenants only and under an express permission contained in the several leases of the respective parcels and became the property of the respective owners under the terms of such ■ leases. No alterations or additions were made by the owners or either of them.”
There were none of the elements in this case from which an easement by agreement might be predicated.
There was no direct evidence of an agreement between the owners in regard to the use of the premises as a hotel, and an agreement could be established only by inference. In
“ 33. There was an agreement between the plaintiffs and the defendant and between the plaintiffs and the defendant’s predecessors that the building upon the said three lots should be used as a hotel.”
“ 37. The respective owners of No.- 15 on the one hand and of Nos. 17 and 19 on the other, have at no time acted conjointly in regard to the property, or entered into any agreement with each other in respect to its joint or combined use or otherwise, but each owner has at all times dealt separately and independently with his own property and with the tenant or tenants thereof.”
Since these findings are inconsistent, the defendant appellant is entitled to the benefit of “37,” the one most favorable to him. (Whalen v. Stuart, 194 N. Y. 495; Kinney v. Kinney, 221 id. 133.) Aside from this, there is no evidence tending to sustain the first. The only agreements that were made were the separate agreements with the tenant by each landlord that the tenant could use the demised premises for a hotel in connection with the other premises. This agreement would be limited to the term of the lease, and the parties thereto. It cannot be extended beyond the term without a new agreement, nor could it inure to the benefit of any one except the parties thereto, their personal representatives or assigns.
Lastly, the plaintiffs claim that they have acquired an easement by estoppel. But estoppel can only arise where a person has changed his position with relation to, or expended money, upon his property, relying upon an existing easement in the adjoining property, and without which the act done or the expenditure would have been useless, and the adjoining owner has not interposed to forbid or prevent it. In such cases equity has interposed and enjoined the adjoining owner from interrupting the enjoyment of the easement. The necessary elements to establish such an estoppel are lacking in this case. First, the owner of No. 15 has not changed his position, relying upon the joint use of the property with Nos. 17 and 19. The leases by both owners were coterminous and were merely a permission of the tenant to so use the property during the period of the lease. Neither made any
In my opinion it is clear that the plaintiffs, as the owners of No. 15, have acquired no easement in the use of the facilities in Nos. 17 and 19 either by grant, express or implied, by estoppel, or prescription. It only remains to be considered whether the plaintiffs, while not entitled to relief in damages in a court of law, have nevertheless acquired such rights under purely equitable consideration that a court of equity might interpose injunctive relief. No such right is claimed by respondents, but Mr. Justice Scott seems to be impressed with the idea that the long-continued use of this property as a hotel has given the plaintiffs a claim to equitable consideration. It is not necessary to cite authorities for the
The judgment should, therefore, be reversed, with costs, the findings inconsistent herewith reversed, and judgment granted for the defendant, with costs.
Clarke, P. J., Smith and Shearn, JJ., concurred; Scott, J., dissented.
Dissenting Opinion
The defendant appeals from a judgment in equity which, in effect, decrees that two adjoining properties owned by different owners shall continue to be maintained and used, as they have been for many years, as a single building.
The facts are peculiar and so far as we are aware are not exactly paralleled by any reported case. Taken together the properties constitute a plot on the northwest corner of Fifteenth street and Irving place in the city of New York,
Prior to the year 1870 there stood upon the property three private dwelling houses, each of which was complete in itself and had a separate entrance on Irving place. No. 15, on the corner, was then owned by Edward J. Lynch; No. 17 by Samuel Frost, and No. 19 by Mattie G. Brown. The latter property was purchased in 1882 by Samuel Frost, who thereafter, and until the time of his death, owned both Nos. 17 and 19.
In the year 1870 Edward J. Lynch leased his house and lot to Joseph Wehrle for the term of ten years, with the privilege of ten years’ renewal. In the same year Samuel Frost leased No. 17 to the same Joseph Wehrle for the term of ten years, with privilege of renewal, the lease containing a stipulation that the property should be used for no “ business or purpose which shall be more injurious to the said premises than the general hotel business.” In the year 1872 Mattie G. Brown leased No. 19 to the same Joseph Wehrle for the term of eight years, with the privilege of renewal for ten years. This lease contained a stipulation identical with that in the above-mentioned lease from Samuel Frost as to the use of the property for no business or purpose more injurious than the hotel business.
Joseph Wehrle, having thus become the tenant for a term of years of all three properties, proceeded to make extensive and radical alterations therein with the purpose arid effect of combining them into a single building which he used during the continuance of his term as an hotel under the name of the Hotel Belvidere. These alterations may be briefly summarized as follows: A mansard roof was constructed over all of the buildings. A basement and four-story addition with mansard roof was built over the rear of No. 15 (the corner lot), so that the hotel building covered and now covers the entire lot. This extension served as a kitchen in the
The interior was arranged for the use of the whole property as one hotel. The main floor of No. 17 served for the entrance hall, and in that building were and are located the heating plant for the whole property; the elevator giving access (through openings cut in the walls) to all parts of the hotel; the ranges, boilers and kitchen flue as well as the electric meter. The drainage system for the whole property passes under No. 15 to Fifteenth street, and in the cellar of that portion of the property is a water meter which supplies the pump and hot water tank- in No. 19 which controls the water supply to all parts of the whole building.
This was the condition of the property when Joseph Wehrle’s lease expired. He did not exercise the privilege to renew. From the date of the expiration of his leases down to now the property has been in appearance and in fact a single building used for an hotel; the several owners, although apparently entering into no formal agreement between themselves as to leasing to the same person, always contrived so to lease their properties that they always had the same tenant, and this tenant has always used the property as a single, entire building under the name Hotel America, or Hotel du Nord.
It was abundantly shown by the evidence that if the property continued to be used in the future as in the past, as a single building, for hotel or some other purpose, it would have a reasonably adequate, rental value, but if broken up into separate and disconnected properties, the buildings, and especially that portion consisting of what was formerly No. 15, belonging to plaintiffs, would be wholly valueless for any usable purpose, since it would be economically impossible to restore it to its former condition as a dwelling house with any hope of realizing an adequate and reasonable return upon the cost.
The rights of the respective owners, as against each other, arose, if at all, when the property came back into their hands upon the expiration of Wehrle’s leases in 1881, in the condition in which he had put it, and are to be established, if at all, by' their dealings with the property during the period, exceeding thirty years, which has since elapsed. Of course the fact that the buildings had been transformed in use and appearance into one was obvious and patent as was the fact that the character of the property had been radically altered so that it was then no longer adapted to use as a block of single dwelling houses, and was adapted only for some use as a single building. But the acquiescence of the several owners to the use of the reconstructed building as a unit for the purposes of an hotel need not be deduced only from their knowledge of the use to which it was in fact put, but is expressly shown by many leases and consents to assignments
It may fairly be said from the evidence and findings that the owners of what were originally three houses finding their properties transformed into a single house under one roof and so arranged internally that every part of that house was dependent upon every other part, accepted and acquiesced in this reconstruction and interdependence for thirty-five years or more, all that time reaping an advantage from the existing arrangement. The question we have to consider is whether one owner, after having for so long a period recognized and profited by the mutual advantages flowing from the use of the property as a single building, may at will destroy the existing arrangement and segregate the properties to the detriment of the other owner. That either owner could have insisted upon physically segregating the properties when Wehrle’s leases expired, or within twenty years thereafter, I do not doubt, but I am disposed to think that the recognized and accepted condition and use of the property had after twenty years established certain mutual rights as between the owners of the several parcels which neither is at liberty to disregard to the detriment of the other. From the history of the property as above detailed we should presume a grant or agreement between the owners that, so long as the building stood, it should continue to be used as a single building, each part enjoying the benefit to be derived from the mutual arrangement of all the parts.
It would serve no useful purpose to discuss at length the manner in which one owner may acquire by prescription, or presumed grant, the right to use his neighbor’s land for the benefit of his own tenement. That such right may be acquired by long-continued user by the owner of the dominant tenement, coupled with knowledge and acquiescence by the owner of the servient, is settled. The books are full of cases in which this principle has been applied. Sometimes the right is exclusively for the benefit of the dominant tenement, and the burden borne solely by the servient. Such are the common cases of rights of way and rights of drainage. Sometimes the rights are mutual apd reciprocal, each tenement being burdened
“ Doe had an easement, or right of enjoyment, of that part of the entry which was beyond the middle line, which does not depend on the courtesy of the defendant; it is a matter of right. It is for the interest of both parties that this should be the case. It may be said the owner may do what he will with his own * * *. But the truth is, it is not his own in an absolute, exclusive sense, because Doe has a right to the enjoyment of it.” (Doe v. Morrell, Smith [N. H.], 255.)
In Thompson v. Miner (30 Iowa, 386) is presented a case similar in some aspects to the present in that a building was erected to cover three lots in such manner that it could be most adequately used together as a single building. The lots upon which the building stood passed into several ownership, but it was held that one owner could not cut off from that portion of the building belonging to the other owners the access provided by the stairs and passageways which were constructed on his part of the building. To the same effect is Kane v. Templin (158 Iowa, 24) where halves of a single building had been granted to different devisees. It was held that an easement existed for the use of the halls and stairways which stood in one half, for the benefit of the other half.
In many other cases the principle applied in the foregoing has been recognized and applied. (John Hancock Mutual Life Ins. Co. v. Patterson, 103 Ind. 582; Foote v. Yarlott, 238 Ill. 54; Lead City Miners’ Union v. Moyer, 235 Fed. Rep. 376.) It is true that the facts in the cases cited are not identical with the facts in the case at bar and that in most of them the easements were created while the properties benefited and burdened were held in the same ownership where the use, which ripened into an easement, had its origin. But this does not affect the principle applicable to the facts we now have to consider. The only difference between easements arising upon the severance of an estate theretofore held in unity of ownership, and easements affecting properties held separately and never united in ownership, is as to the manner in which the ease
While the law reports in this State are replete with cases dealing with the creation and enforcement of easements I have been able to find but one which resembles in its peculiar facts the one we are now considering. In that case it appeared that Bartholomew Karalus and his wife Katarzyna purchased a corner lot in the city of Buffalo which they owned jointly. Upon this lot they erected a building which they occupied as a saloon, grocery and dwelling house. Subsequently the husband individually acquired title to an adjacent lot. The two lots were inclosed with a fence and used and occupied as one tract, and the husband erected upon the lot acquired by himself individually an addition to the building erected on the corner lot. Connected with this addition were a shed, outhouses and a large woodshed. These buildings were all used together by the husband and wife, until the death of the former, twenty-five years after the properties had first been united in use. Later the wife died bequeathing her property to the plaintiffs. The husband having died intestate and without descendants, his heirs, after the wife’s death, partitioned his
“ The rule is stated in this language in Winne v. Winne (95 App. Div. 48; affd., 184 N. Y. 584) at page 50: ‘Where the owner of the land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon the severance of the ownership the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance.’ * * *
“ If the situation were presented between the husband and the wife, he would at this late day be estopped to repudiate his affirmative acts in affixing these buildings to the store and dwelling. * * *
“ The part of the building, for the various additions are so attached as to constitute one building, cannot now be severed without materially diminishing the value of the first tract purchased. * * * The substantial character of the part added, its necessity for the beneficial use of the first property purchased and the manner in which it was joined to the first building denote that these two people intended that the entire building should remain as erected as an appurtenant to the first lot.” (Fronckowiak v. Platek, 152 App. Div. 301.)
It may be noted in regard to the case last quoted that although there had been a partial unity of ownership, the court preferred to rest its decision upon the long-continued and notorious use.
The appellant calls our attention to an apparent contradiction between the 33d finding of fact to the effect that there was an agreement between the owners that the building in question should be used as an hotel, and the 37th finding to the effect that the respective owners had at no time entered into any agreement with respect to the joint or combined use of the properties. The contradiction is more apparent than real. In the 33d finding the court evidently referred to the presumed agreement resulting from long-continued use and acquiescence. In the 37th finding the court evidently meant to find that no formal agreement had been entered into between the owners. It should be amended to as to express that .meaning clearly.
The judgment should be affirmed, with costs.
Judgment reversed, with costs, and judgment ordered for defendant, with costs. Order to be settled on notice.