Opinion
10-08-1888
HAGERTY v. LEE et al.
T. G. Shipman, for motion. J. W. Shultz, contra.
(Syllabus by the Court.)
In equity. On motion to dissolve injunction.
The complainant, who was the owner of a strip of land fronting 50 feet on Main street in the town of Phillipsburgh, and running back southerly, that width, 220 feet to Union street, conveyed to Christopher S. Winters the westerly half of that land by deed which, in the language of the bill, contains the following reservation: "Reserving the right to the free use of the light and air over the tract above described, in case he should build on the common line between the parties, and the right to put windows in said building, overlooking the tract above described. It being agreed between the parties hereto that in case either party builds on the common line for a distance of twenty-four feet, more or less, from the south edge of Union street, the line is to be in the middle of the foundation wall, at the option of the parties hereto, and that the expense of the wall and partition to the roof of the building shall be equally borne share and share alike by each. The party of the first part reserving the right to continue the wall in the same way and manner as last above mentioned, but the erection thereof to be at his own expense, with the further right to use the whole wall." Immediately after the delivery of this deed, Winters proceeded to erect a frame dwelling 24 feet deep, using therein a party-wall of the description contemplated. In October, 1884, the complainant constructed a store and dwelling upon the land which remained to him, using therein the party-wall and a continuation of it, extended by him southerly 68 feet. In the extension he made windows overlooking Winters' land. In June, 1886, Winters sold his property to the defendant John Lee, by deed, which contained the following stipulation: "It is expressly agreed by and between the parties hereto that the said party of the first part conveys these premises subject to the same reservation and limitation in regard to windows as is recited in the same deed above referred to, made by the saidHagerty to the said Winters. And also it is agreed that the same conditions and agreement regarding the trenches and foundation walls as recited in said deed shall be binding upon the parties hereto, and the conditions and covenants in the said deed made by the said Hagerty to the said Winters above referred to in regard to windows, foundation wall, trenches, and partitions or other walls are to be binding upon the parties hereto, the same as if the said conditions and covenants were herein set forth in the same words as contained in said deed." On January 10, 1888, without notice to the complainant, Lee commenced to build an addition to the house upon his land close to the complainant's building in such manner as to completely shut out the light from two of the windows in the complainant's house, which overlooked Lee's land, and to partially obstruct the light from two other of those windows. On the next day, when the frame-work was partly erected, the bill in this case was filed, and an injunction was issued, which restrains the erection of the proposed addition in such manner as to obstruct the passage of light and air through the windows referred to. The answer admits the allegations of the bill as to the deeds to Winters and Lee, claims that the proposed building will be so erected as not to obstruct the passage of air; admits that it will obstruct light as in the bill alleged; alleges that the complainant will have an abundance of light in the rooms from which the obstructed windows open through other windows; denies that the deeds, or either of them, give the complainant right to light and air from the defendant's premises; and insists that, if those deeds do give that right, it must be limited to a sufficiency. Motion is now made to dissolve the injunction.
T. G. Shipman, for motion. J. W. Shultz, contra.
MCGILL, Ch., (after stating the facts as above.) I think that the reservation in deed from complainant to Winters operated as a grant of an easement in the lands of Winters. In God. Easem. 108, it is said: "An easement cannot strictly be made the subject, either of exception or reservation, in a deed of conveyance of land; for it is neither parcel of the land granted,—which circumstance is requisite to enable a thing to be expected,—nor does it issue out of the land, as it should to render it capable of being the subject of a reservation. If, therefore, an easement be incorrectly reserved to a grantor of land, or excepted from the land conveyed, the reservation or exception operates as a grant of a newly-created easement by the grantee of the land to the grantor." Rosenkrans v. Snover, 19 N. J. Eq. 420; Cooper v. Louanstein, 37 N. J. Eq. 284. It seems to be free from question that the easement extends at least to be sufficiency of light and air from the defendant's premises, although the right of the complainant to maintain an unlimited and unnecessary number of windows may be doubtful; at all events, is unsettled. In such a position of affairs I would have no hesitation in restraining any erection that would so deprive the complainant of light and air as to render his occupation of his house decidedly uncomfortable. But he fails to show that he will suffer substantial privation of light or air by the threatened obstruction of the windows of his house. His bill alleges that two windows will be closed, and that two other windows will be partially obstructed and darkened; but it does not state that thereby the passage of light and air to his house will be substantially hindered. The defendant, on the other hand, by his answer, insists that, although the obstruction will shut up two windows, it will leave a window or windows in each room of complainant's house, through which an abundance of air and light may enter. Taking the allegation of the answer as true, the proposed office of the injunction is to restrain the erection of a building that will obstruct unnecessary windows. The right to maintain such windows should be established at law, before an injunction should issue. Coach Co. v. Railroad Co., 29 N. J. Eq. 299. I will order that the injunction be dissolved, with costs.