164 N.Y. 429 | NY | 1900
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The plaintiffs in their complaint ask that the defendant restore the middle house and pay damages for interference with their use of it. They rely mainly upon Rogers *432
v. Sinsheimer (
In Griffiths v. Morrison (
So in the case before us. By the mutual conveyances in 1880, by which the entire lot was divided and the westerly half conveyed to the plaintiff's mother and the easterly half to the defendant's grantor, with full covenants and without reservation, the intention to effect a complete severance of the estates was manifested. If the heirs of Crawford, the former owner of both lots, had first conveyed the westerly half and had retained the easterly half, conveying it later, the case would have some features now absent of an intent to vest in the grantee of the westerly half, the plaintiffs' mother, such existing and visible servitudes in the lot retained as would be necessary to the enjoyment of the lot and building first sold. (Lampman v.Milks,
Here, however, both grants were of the same date, and each grantee was one of the grantors of the other, and both united in the severance of the common estate. Besides, the middle building was apparently a cheap structure. Why divide it by a line which would cut the house and its rooms into two parts if it was intended that each part should continuously support the other forever? The intention seems to be clear that such division was made because it was not expected that the middle house would long exist.
As was said in the Morrison case, the character of the easement claimed does not differ in effect from the claim of a fee to the eight feet; it requires the use of that amount of land *434 belonging to the defendant. It would be intolerable to extend the doctrine applicable to party walls so far as to compel the owner of a lot, in the absence of an express grant or reservation, to maintain or permit its maintenance by the adjoining owner, in the interior of his lot, thus giving to the adjoining owner not only the support of the wall but the dominant use of the intervening space in order to reach his distant support. No case to which we are cited goes so far.
As to the water and sewer pipes, it was not found that it was necessary that they should pass through the defendant's lot in order to reach and serve the plaintiff's lot, and, as there is no grant or reservation of such a privilege, none exists.
The judgment should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT, CULLEN and WERNER, JJ., concur.
Judgment affirmed.