VAN FLEET, V. C.

(Syllabus by the Court.)

Frederick W. Stevens, for complainant. Elias F. Morrow, for defendant.

VAN FLEET, V. C. This is a case before the court on final hearing on bill without an answer. The facts, bearing on the question in dispute, have been stated by the complainant in his bill with such accuracy and fairness as to render an answer, in the judgment of the defendant, unnecessary, and she has, in consequence, proceeded to final hearing on the bill alone. The facts necessary to be considered in deciding the question at issue between the parties need to be stated somewhat in detail. They are the following: On the 1st day of November, 1854, the Third Presbyterian Church of Newark leased to Stephen Ford and Thomas Maplesden a lot on the west side of Broad street, in the city of Newark, 41 1/2 feet front and rear, by 166 feet deep, for a term of 13 years and 6 months, extending to May 1, 1868. When the lease was made the lessees were the owners of a frame building, about 80 feet deep and 3 stories in height, standing on the demised premises. The lower part of the building was then used as a store, and the upper part as a dwelling. The only means of access to the upper part was by a stairway in a hall on the northerly side of the building. A door opened from Broad street into the hall, and at the head of the stairway there was a passage-way, running across the building, which afforded the only means of approach to the rooms facing the south in the second and third stories. The lease gave the lessees a right to renew for an additional term of 20 years, at a rent to be agreed upon or fixed by arbitrators; and also provided that, in case the lessees did not choose to renew, they should have the right to remove the building on the expiration of their term, unless the lessor should elect to take it at a valuation to be fixed by agreement or arbitration. Maplesden transferred all his right in the demised premises and the building to Ford, his co-lessee, in April, 1855; and Ford, on the 28th of October, 1867, sold and transferred to Charles Garrabrant the northerly part of the demised premises, the part sold being 18 feet in width, front and rear, measured from the northerly exterior line, and 100 feet in depth. His sale included that part of the building standing on that part of the demised premises which he sold. The deed made by Ford to Garrabrant was executed by both under their hands and seals, and declares that that part of the demised premises conveyed by it is conveyed subject to the following reservations and conditions: "That the hall extending back twenty-eight feet, and the stairway leading into the dwelling and upper part of the premises hereby conveyed, and the part now owned by the said Stephen Ford, lying southerly of said last-described premises, shall be kept open and unobstructed for theuse of said parties and their families, tenants, and servants: and that said Ford, his family, tenants, servants, and legal representatives shall have the right to use the stairway, passage, and cross-hall to and from any part of the premises owned by him, adjoining the premises hereby conveyed; and with the further reservation that the partitions in the third story of the building on the premises hereby conveyed shall remain as they are at this time, unless said building should be destroyed.

Just six months after the sale by Ford to Garrabrant, namely, on the 28th day of April, 1868, Ford and Garrabrant procured a new lease to be made to them jointly for a term of 20 years from May 1, 1868. The new lease gave them substantially the same right to renew for an additional term of 20 years and to remove the building that the first lease did. Though the new lease was made to Ford and Garrabrant jointly, each subseqently occupied in severalty that part of the demised premises to which he was entitled. Ford, in September, 1869, consented in writing that Garrabrant might reduce the width of the hallway from six to three feet, but the writing declared that it was expressly stipulated that all the other conditions and reservations contained in the assignment made by Ford to Garrabrant, in October, 1867, should remain in force. Ford, on the 3d day of January, 1870, sold and assigned that part of the building which he owned, together with his right of passage through the other part, and also that part of the demised premises which he occupied, to the complainant. He also transferred to the complainant his right to a renewal of the lease for an additional term of 20 years. The lessor, in April, 1888, granted a new lease to the complainant for a term of 20 years from May 1, 1888, of that part of the demised premises which the complainant then occupied. Garrabrant's right in the demised premises, and to the building, was sold in December, 1886, under a judgment recovered against him at law, and purchased by his wife. He and his wife, in February, 1888, by writing, relinquished their right to a renewal of the lease, and also their right to the building in favor of the defendant; and the lessor, on the 15th of March, 1888, made a lease to the defendant, for a term of 20 years from May 1, 1888, of that part of the demised premises which Garrabrant had previously occupied. This lease contains a recital of the provisions of the lease made by the lessor to Ford and Garrabrant, dated April 28, 1868, and gives the date and place of record of a deed made by Ford to Garrabrant, in which the right now in dispute is reserved. The complainant himself occupies the lower part of his building as a store. The upper part he rents as a dwelling. The two parts have been thus used and occupied continuously since 18.70. The complainant's tenants, for all that time, have used the hall and stairway to go to and from the rooms in the upper part of his part of the building. There is no other means of access to those rooms, and never has been. The right of the occupant of those rooms to use this means of access was never denied or questioned until November, 1889. The defendant then denied it, and placed a bar across the hail. Thereupon the complainant, together with his tenant, filed the bill in this case. An injunction is asked restraining the defendant from obstructing the passage through the hall to the rooms above. Though not alleged in the bill, it is admitted that Stephen Ford, the person who created the right which the complainant is seeking to maintain, died in 1885.

From the foregoing statement it appears that the defendant derived her title to the building from an entirely different source from that from which she acquired her right to the demised premises. Whatever right she has to the building she acquired from Mrs. Garrabrant. Her lessor had no right to the building. The lease, therefore, made by her lessor to her, gave her none. And now we come to what I regard as the test question of the case, and that question is, did the right reserved by Ford, in his sale to Garrabrant, have the effect to create, in favor of that part of the building which he retained, and impose upon that part of the building which he sold, a license or right in the nature of an easement which the parties meant should attach itself to the building, and pass with the building to all subsequent owners? If such was the mutual intention of the parties, the reservation constitutes a contract which it is the duty of the court to uphold and enforce, unless it appears that it is opposed to sound public policy, or that it violates some positive rule of law. No claim was made on the argument that the reservation is void on either of these grounds. In my judgment, it is unassailable on either. The defendant's contention, however, is that the building is a chattel, and hence not subject to the law of easements and servitudes. In other words, that one part of a chattel cannot, by contract or otherwise, be made servient to another part, so as to make one part dominant, and the other servient. The building is unquestionably a chattel. The law is settled that where one person erects a building on the land of another by permission, under such circumstances as to show that it is the mutual intention of the parties that the person making the erection shall have the right to remove the building, the title to the building will not pass to the land-owner, but will remain in the builder, and the building itself, notwithstanding it is incorporated into the land in such manner as to make it part of the land, if it had been erected by the owner of the land, will, according to the legal classification of property, be considered a chattel. Pope v. Skinkle, 45 N. J. Law, 39. It is also true that the law of easements relates exclusively to land, and cannot be applied to chattels. An "easement" is defined as a right which one proprietor has to some

WILLIAMS, J. The order complained of in this appeal was made under the authority of the act of 14th March, 1876. The proceeding being in derogation of the common law, the act that authorizes it must receive a strict construction. Felt v. Cook, 95 Pa. St. 247. It authorizes the court in which any judgment has been entered, on the application of the defendant, made under oath, setting forth that the judgment has been paid in full, together with all the costs, to grant a rule on the plaintiff to show cause why the judgment shall not be marked "Satisfied" on the record. On the hearing of the rule, if it shall appear that the "judgment has been fully paid as set forth in the application," the court is empowered to direct the prothonotary of the court to mark the judgment "Satisfied;" and, as a just punishment to the plaintiff for refusing or neglecting to make the proper entry after having been fully paid, the court is directed to "enter a decree requiring the plaintiff to pay all costs incurred in the premises." The court has no power to apply cross-demands, or set off judgments, or to investigate original equities, in this proceeding; but the affidavit must set out actual payment of the judgment debt, interest, and costs in full, or the rule will not be granted. On the hearing the proofs must show actual payment, as alleged, in full; for, if the judgment is not satisfied in fact, the statute gives the court no power over it. If the proofs do not show payment of the judgment, the court must discharge the rule, for they have no power to inquire into any other fact.

The application of these principles in the case before us is easy. A judgment was entered in the common pleas of Luzerne county on the 1st day of March, 1886, in which Melan was plaintiff and Smith was defendant. On the 27th September, this judgment was assigned to Margaret Smith, who assigned to Flannery. On the 19th of November, 1889, the defendant presented his petition to the court in which the judgment was entered, alleging that it had been paid in full,—debt, interest, and costs. A rule was thereupon granted calling on the plaintiff to show cause why the assignment should not be struck off, and the judgment marked, "Satisfied." This rule, after notice to the assignee and a hearing upon testimony taken, was made absolute on the 6th day of December following. The power of the court to strike off an assignment of a judgment at the instance of the defendant in a summary way is, to say the least possible, a very doubtful one; but the power to satisfy the judgment is expressly conferred, and, when exercised, disposes of the judgment so effectually as to render inquiry upon the other subject unnecessary. The court heard the evidence, found as a fact that the judgment had been actually and fully paid, and made the rule absolute. All that remains to be done is to make the formal order authorized by the act of 1876, which may be done here. And now, 16th April, 1890, the order of the court of common pleas of Luzerne county made on 6th day of December, 1889, directing the prothonotary of said court to mark the judgment in favor of Melan now to use of Flannery against Smith, "Satisfied," is affirmed; and it is further ordered that said plaintiff, Henry J. Melan, pay all the costs incurred in the premises in said court. The costs of this appeal to be paid by the appellant.