141 N.Y.S. 282 | N.Y. App. Div. | 1913
This is an action in ejectment. The plaintiff owns the premises known as N®. 1492 Lexington avenue, in the borough of Manhattan, New Tork,, which have a frontage of twenty-five feet on the westerly side of the avenue and a depth of eighty feet; and the defendant Koch owns the premises adjoining on the north, known as No. 1494 Lexington avenue, of like dimensions.
At some time, prior to the year 1888 both of these lots were owned by one Schnugg, and evidently his grantee, whose name is not disclosed by the record, in that year built a five-story brick house on each lot with a party wall between them. The buildings thus erected occupied the premises from the line of Lexington avenue to a depth of about sixty-five feet. The party wall between the houses is sixteen inches. thick and its center line is the true boundary, line between the lots. A chimney was erected with the party wall and houses at the westerly end of the party wall and of the same width and extending out therefrom -westerly eight and three-fourths inches and running above the top of the buildings. Every third layer of brick in the chimney was bonded . into the party wall and probably-in part into the rear wall of plaintiff’s house, if the surveys are accurate, for although the chimney is of the same thickness north and south as the party wall, it extends nine and three-fourths or ten inches over the plaintiff’s premises, or one and three-fourths or two inches more than one-half its thickness. It was not otherwise shown whether .this chimney was designed for or was used in connection with both houses or how it was connected or used or capable of being used.
It appears that after the houses had been erected, but during the same year, an oven was built in the rear of the premises now owned by the defendant. This oven apparently was built upon the surface of the back yard, and consisted of three stone walls cemented qr plastered on the outside, and a roof. The evidence tends to show that the walls of the oven originally extended about five feet above the ground, but the plaintiff’s premises have.since been filled in, and according to a survey made shortly before the trial the southerly wall of the oven was then only about three and one-half feet above her lot. The westerly line of the westerly wall of the oven was about thirteen feet
These two houses and lots were sold on the foreclosure of a mortgage, together with the two adjoining on the south, and were duly conveyed by referee’s deed to said Schnugg on the 17th day of April, 1889, and according to his testimony, the oven had been fully constructed prior to that time. On the twenty-sixth day of the same month Schnugg conveyed the southerly house and lot to the plaintiff s brother; but the plaintiff and her mother, together with her brother, furnished the consideration, and on the 9th day of October, 1899, the brother
It was conceded by counsel for the defendant on the trial that the plaintiff owned the fee to the premises described in the complaint, but in behalf of his client he claimed an easement for the support of the chimney and wall of the oven as long as they stand. The plaintiff, by failing to request the. court to direct a verdict for possession, conceded that there was a question of fact; and the court submitted it to the jury to determine whether or not the conveyance of the premises now owned by the plaintiff from .the common owner was subject to a servitude in favor of the premises now owned by the defendant for the maintenance of the wall, and if not, the damages sustained by plaintiff. The jury were instructed, in effect, that if it was open and obvious to any one examining the property at the time of the conveyance to the plaintiff’s brother, or at the time of the conveyance by' him to her, that this wall encroached upon the southerly lot, the jury would have a right to find that both her brother and she took title subject to a servitude in favor of the northerly lot. If, therefore, the jury found that the oven wall was not a party wall they may have found against the plaintiff on the theory that her brother and she took subject to an easement because it was observable that the wall was over the boundary line. If the existence of an easement depended on whether the encroachment was obvious, doubtless it was a question of fact. That question appears to depend mainly upon the order of the conveyances by the common owner. The early decisions in this State are not in harmony on the effect of such a grant without an express reservation of an easement for the support of a wall on the land not conveyed which encroaches on the premises conveyed; but finally the courts have declared the law to be that in such case there is no implied reservation of an easement in the premises first conveyed in favor of the premises not granted, unless the encroachment or servitude “is apparent, continuous and absolutely necessary for the enjoyment ” of the premises retained by the grantor. (Wilmurt v. McGrane, 16 App. Div. 412, 418, and
Ingeaham, P. J., McLaughlin and Clarke, JJ., concurred.
I concur in the reversal of the "judgment because under the pleadings the judgment might hereafter be deemed to amount to an adjudication that the plaintiff is not the owner of the strip of land on which the encroachment rest, and this notwithstanding the disclaimer by the defendant, on the trial, of any claim of title to this strip.
The evidence clearly indicates, and so as I understand the jury must have found that the oven had been erected substantially as it stands now, when the common owner Schnugg conveyed the southerly house and lot to the plaintiff’s predecessor in interest. At that time the southerly wall of the oven overlapped and encroached upon the southerly lot. This encroachment was continuous and apparent and reasonably necessary for the enjoyment of the oven as it then stood. I think, upon well-established principles, that there was an implied reservation in favor of the northerly lot for the support by the southerly lot of so much of the oven wall as then encroached upon it. (Lampman v. Milks, 21 N. Y. 505; Simmons v. Cloonan, 47 id. 9; Wilson v. Wightman, 36 App. Div. 44.) The proper judgment to be entered upon the facts as they appeared upon the trial would be that suggested in the very similar case of Wilson v. Wightman (supra), to wit, that the plaintiff is the owner of the fee subject to an easement appurtenant to the adjoining lot for the maintenance of the existing oven wall. Of course, if that wall be removed the easement would terminate, and no new wall encroaching upon plaintiff’s property could legally be built. (Buss v. Dyer, 125 Mass. 287.)
Judgment and order reversed, new trial ordered, costs to appellant to abide event. Order to be settled on notice