Whyte v. . Builders' League , 164 N.Y. 429 ( 1900 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] 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 v. Sinsheimer (50 N.Y. 646). That was the case of a party wall, wholly standing upon the plaintiff's lot and two inches inside of his lot. The grantors of both parties took title to their separate lots from the former owner of both, who erected the houses, each supported by the common wall. This court held that the plaintiff could not maintain ejectment for the two inches and a half of the party wall occupied by the defendant "so long at least as the buildings should endure." The justice of recognizing under the circumstances an easement in the party wall separated by only two inches from the defendant's land, so long as the conditions should remain unchanged, is apparent. There was no holding that the plaintiff could not change the conditions; that he could not tear down his old house and build a better one, or that if he should tear it down the defendant could compel him to restore it. The defendant in that case was permitted to enjoy the party wall while it should last, and also the two inches necessary to its enjoyment. In the case under review, before the conveyance to the defendant, the middle building was sawn asunder upon the boundary line, and after the conveyance the defendant tore down its half of the house and erected a better building in part upon its site. The easement, if there was any, thus reached the limit of its life. But we do not think there was any.

In Griffiths v. Morrison (106 N.Y. 165) the plaintiff was the owner of two adjoining lots, numbers 141 and 143, and he conveyed to the defendant's grantor No. 141 and retained No. 143. At the time of the conveyance a house stood on the lot conveyed and extended five feet over the line between the two lots and up to a building upon the lot retained by the plaintiff, and the side of the latter building formed the walls of the rooms in the defendant's house; the two buildings, however, were in no wise keyed together. The plaintiff, although he was the grantor, brought ejectment for the five feet and this court sustained his recovery. The court in its opinion mentions the fact that the buildings were not keyed together, and thus one was not needful for the support of the other, but the judgment rested upon the fact that the plaintiff had conveyed no title to the five feet or easement in it. "If," said PECKHAM, J., speaking for the court, "there had been any thought of conveying that portion of the house which stood on land not conveyed, or of erecting any easement upon the land not conveyed, in the nature of a right of support for the walls of the building, I think language would have been used which would have made it plain that such was the intention."

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, 21 N.Y. 505; Butterworth v. Crawford, 46 N.Y. 349;Simmons v. Cloonan, 81 N.Y. 557; Paine v. Chandler,134 N.Y. 385; Spencer v. Kilmer, 151 N.Y. 390.)

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 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.