99 N.Y.S. 1015 | N.Y. App. Div. | 1906
The structure which is called or designated in the evidence as two buildings and which is the subject of this controversy, is, located on the west side of State street in the city of Rochester, JST. Y. It practically consists of two buildings, separated from, each other by a party or division wall extending from the ground to the roof, four stories in height. The ground floor is occupied by stores, one upon either side of said party wall. The upper stories on both sides are arranged so as to be. occupied by families or lodgers for living rooms. The defendant is the owner of the most southerly of said two buildings, and the plaintiff has a life lease of the other.
As these two buildings were constructed, the only means of access to the upper stories was through a door opening from State street into a hall, then by stairways leading to the top story, each starting from a hall extending the entire length of the building.
The structure or the two buildings described in the complaint, and as thus arranged, had been used as indicated by their manner of construction they might be used, for many years by the respective owners or lessees of each without objection or interruption on the part of the other until shortly before this action was brought, when the defendant asserted in effect that the plaintiff had no right to the use of the halls or stairways referred to or to the door from State street leading thereto. The plaintiff’s right to maintain this action depends almost entirely upon documentary evidence which is uncontradicted.
It is found by the learned trial court, and there is abundant evidence to sustain the finding, that on or about the 19th day of April, 1870, one Charlotte French, the then owner of the entire premises and including both buildings, so called, conveyed the northerly portion thereof and of which the plaintiff has now a life lease, to one John Houghtaling, and in the deed the following appeared : “ The party of the second part (John Houghtaling), his heirs and assigns, shall have the perpetual right of way to the upper stories of' said building by the stairways and halls as now located in the south part of said three-story brick building, together with the use in common with party of the first part, her heirs and assigns, of the water closet, wash stands, cisterns, etc., now or hereafter to be erected on said premises. It is understood that in case the stairs and halls shall be destroyed by fire or otherwise, in said building as now located, the same shall be rebuilt by party of first part or her assigns. The party of the second part, his heirs and assigns, to pay one-half the expense of the building said stairs.”
The deed was duly recorded in the clerk’s office of Monroe county on that day. It then appears that thereafter and on the 28th day of March, 1872, said Charlotte French sold and conveyed to the defendant the southerly portion of said lands described in the com
Hpon the foregoing facts we can conceive of no theory upon which the plaintiff may be deprived of the use of the halls as specified in the deed to her grantor.
It appears, however, that Houghtaling, to whom Mrs. French, the common grantor, deeded the northerly portion óf the premises with the right to use the halls located upon the southerly half, for a number of years paid rent for the use of said halls, in connection with having the same cleaned, to the defendant, and it is claimed that such action on his part amounted to a release or relinquishment of such easement. The trial court refused to find, notwithstanding that single circumstance, that said Houghtaling did or intended to
In Welsh v. Taylor (134 N. Y. 450) the head note is as follows: “ One who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and his title will not be affected by non-user unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law.”
It is not pretended that any of the acts of Houghtaling, which it is claimed amounted to an abandonment of the easement, ever came to the knowledge of the plaintiff. His deed, which was duly recorded, showed him the owner of such easement. His conveyance to her grantor, Fahy, which was also recorded, showed that such easement was conveyed precisely as the rest of the premises, and by her lease she became entitled to enjoy during her natural life the entire interest which Fahy had in said premises. The right to use the halls, etc., was an easement which ran with the land and was in no sense a license. (Greenwood Lake & P. J. R. R. Co. v. N. Y. & G. L. R. R. Co., 134 N. Y. 435, 439, 440; Dexter v. Beard, 130 id. 549.)
These suggestions, we think, answer the main questions presented by this appeal, and upon the merits there can be no doubt but that the judgment is right. It is not too broad in our opinion. Indeed, the court below would have been justified in granting to the plaintiff the right to use said halls, etc., with even fewer restrictions.
The exceptions to which attention is called in appellant’s brief do not present error and certainly not so as to require a reversal. The judgment appealed from should be affirmed, with costs.
All concurred.
Judgment affirmed, with costs.