Opinion
02-28-1910
LIEDTKE v. LIPMAN.
Adam J. Rossbach, for complainant. Woerner & Woerner, for defendant.
Action by Amalie Lledtke against Naomi Lipman. Heard on motion for preliminary injunction. Granted.
Adam J. Rossbach, for complainant.
Woerner & Woerner, for defendant.
HOWELL, V. C. The defendant, Mrs. Lipman, on August 15, 1908, was the owner in fee of two lots on the west side of South Eighteenth street in the city of Newark, on both of which dwelling houses had been erected; they are known as 509 and 511 South Eighteenth street. The building on 509 extended about 25 feet in depth from the line of the street, and the building on 511 extended about 45 feet from the street. On the day named the defendant conveyed to the complainant the more southerly of these two properties, No. 511, and retained title to No. 509, although the defendant had prior to the conveyance to the complainant made an agreement in writing to convey the northerly tract to Jennie Feldman. This conveyance has not yet been made. At the time of the agreement with Mrs. Feldman for the conveyance to her of the northerly lot, it was agreed between the defendant and Mrs. Feldman that the defendant would erect an extension in the rear of the dwelling house on that lot. The dwelling house on No. 511 was built up to the north line of that property, and there were four windows on the north side of it. The house on the northerly lot was erected 7 feet from the line of the southerly lot. In the agreement between the defendant and Mrs. Feldman was a provision for the erection by the defendant on the lot which Mrs. Feldman was contracting to buy of an addition to the house, which addition is now being erected; it comes within one foot of the four windows opening on the north side of the complainant's lot and is therefore a serious obstruction to the proper and natural entrance of light and air into the complainant's dwelling.
The complainant now applies for an injunction to prevent this obstruction of light and air, upon the ground that she by her deed from the defendant obtained an easement over the open lot of the defendant for the free and natural admission of light and air into her dwelling, and that such easement was open, apparent, and is continuous, and that the complainant has no right to violate it.
This subject has been extensively dealt with in this state, but particularly by Vice Chancellor Pitney in the case of Toothe v. Bryce, 50 N. J. Eq. 589, 25 Atl. 182, and Bloom v. Koch, 63 N. J. Eq. 10, 50 Atl. 621. The defendant does not deny any of the facts set up in the bill upon which the complainant bases her right to relief, but claims as a matter of law that there can be no apparent and continuous easement in favor of the complainant in this case, because such easement as is now claimed by the complainant is not absolutely necessary for the enjoyment of the complainant's premises. The text-book writers agree that such easement, or, as it is sometimes called, such quasi-easement, may be claimed where at the time of the conveyance it was continuous, apparent, and reasonably necessary to the beneficial enjoyment of the estate for which it is claimed, and that in such a grant of such easement, would be implied. Jones on Easements (section 147). This doctrine has been fully accepted by this court in the cases just referred to. In this it appears that the defendant is threatening to erect a building within one foot of the northerly line of the complainant's property, which is so near to the windows which it will cover, as to amount to a practical exclusion of light and air from them. This is so gross an infringement of the complainant's right as to be manifest upon the slightest inspection. It would even satisfy the requirement of "necessity" for which the defendant contends. I therefore have no hesitation in saying that in my opinion the complainant has an implied easement which will be infringed by the erection of the building which the defendant has in contemplation.
The defendant urges that at the time of the conveyance of lot 511 to complainant there was no unity of title of the two lots in the defendant for the reason that the defendant had already contracted to sell the northerly lot to Mrs. Feldman. It does not appear that the complainant had any knowledge of the Feldman agreement, either actual or constructive (it was never recorded), and he had a right to presume that he was dealing with the person who had the legal and equitable title to both lots. She is not bound by any equities between the defendant and Mrs. Feldman, and she had a right to suppose that she was purchasing not only the land within the four corners of her deed, but also the apparent and continuous casement which she now claims.
The defendant objects also that there can be no injunction in this case because the bill is not properly verified. It does not appear upon examination that the verification is of the very slightest character, and if the application stood upon the bill alone, it might be doubtful whether an injunction could go, but the defendant has supplied the deficiencies in the proof by the affidavits presented by her in opposition to the motion.
I will, therefore, advise an order for the issuing of an injunction to prevent the defendant from interfering with the free passage of light and air across the premises in question (509 South Eighteenth street) to the windows on the north side of the complain, ant's property.