McKenna v. Brooklyn Union Elevated Railroad

Werner, J. A very brief statement of a few .pertinent legal principles will suffice to dispose of the case at bar. 1. Easements of light, air and access, appurtenant to real property abutting upon a public street or highway, are inseparable from the dominant estate, and upon a conveyance of the latter such easements pass to the grantee, notwithstanding the grantor’s attempted reservation of the same, or of any rights of action for the invasion or destruction thereof. (Pappen heim v. Metr. E. R. Co., 128 N. Y. 436; Kernochan v. N. Y. El. R. R. Co., Id. 559; Pegram v. N. Y. El. R. R Co., 147 id. 135; Foote v. Metr. E. R. Co., Id. 367; Shepard v. Man. Ry. Co., 169 id. 160; Western Union Tel. Co. v. Shepard, Id. 170.) 2. Although such a reservation in a deed is ineffectual to create a trust in such easements, it does create a resulting trust by virtue of which the grantee becomes a trustee for his grantor as to all moneys received or judgments recovered for the invasion or destruction of such easements. (Pegram v. N. Y. El. R. R. Co., supra; Western Union Tel. Co. v. Shepard, supra.) 3. The logical corollary of the two foregoing propositions is, that the owner of premises as to which such easements have been invaded or destroyed, is the only person who can sue for the damages thus caused, or who can execute a release in satisfaction thereof, and it follows as a necessary legal deduction that the person or corporation invading or destroying such easements has the right to obtain a release from the owner of the dominant estate, who alone is legally entitled to the resulting damages. . The complaint in the case at bar undoubtedly alleges facts which justify the legal conclusion that when the grantee *397 (Gordon) received from the railroad companies the moneys paid in consideration of the release executed by her, she became the trustee of the plaintiff (grantor) as to such moneys; and as these facts were not disputed the learned trial court properly held that the grantee (Gordon) should be brought in as a party defendant, to the end that there might be an adjudication of the matter as between her and the plaintiff. To this extent the decision at Special Term was concededly correct. But the plaintiff contends that it was error for the court to dismiss the complaint as to the defendant railroad companies, and to that view the learned Appellate Division gave its assent by reversing the judgment entered at Special Term. This disposition of the case seems to have been based upon the theory that the reservation in the deed from the plaintiff to Gordon, her grantee, was effectual to create an equitable lien upon the easements therein referred to, which was binding upon the railroad companies who took the release from Gordon with knowledge of the reservation in the deed to her. We cannot subscribe to this theory. It is fundamentally at variance with the established principles that such easements are inseparable from the estate to which they are appurtenant. Since there can be no lien upon such easements separate and apart from the freehold to which they are appurtenant, it is clear' that upon the facts alleged in the complaint and established at the trial, the plaintiff was entitled to no relief as against the defendant railroad companies. The reservation in the deed from the plaintiff to the defendant Gordon accomplished nothing save the creation of an equitable lien in favor of the former as against the latter upon the moneys received as a consideration for the release of the easements, and in the absence of any allegation or proof of fraud or insufficiency of consideration, the amount thus received is conclusive as-between them. It is true that the plaintiff sought to prove inadequacy of consideration and such fraud as might he inferred from that circumstance, and the refusal of the trial court to receive such evidence is one of the grievances assigned b)T plaintiff *398 on this appeal. A sufficient answer to plaintiff’s contention in that behalf is that the complaint contains no allegation to support such proofs. The plaintiff was given the opportunity at the trial to amend her complaint, which she declined, and the record as it stands clearly justifies the ruling of the trial court in dismissing the complaint as against the defendant railroad companies. We need go no further to sustain the decision of the trial court, although it may be added that it is, to say the least, extremely doubtful whether the plaintiff could maintain any equitable action against the defendant railroad companies under any circumstances. There is absolutely no privity of contract or relation between them. The plaintiff’s equitable remedy is against her grantee alone, who is impressed into the relation of trustee as to the fund, merely to prevent such wrongs and hardships as might be inseparable from an inadequate legal remedy. We do not say that circumstances may not arise under which a grantor in the position of the plaintiff may not have a cause of action against both her grantee and those to whom the latter may have released the easements, but we can conceive of no such case unless it be founded upon express allegations of affirmative fraud in which both releasor and releasee were active participants, and in such a case the remedy at law is usually sufficient, and as that question is not presented by this record we do not decide it. The order of the Appellate Division should be reversed and the judgment entered upon the decision of the trial court affirmed, with costs in both courts. Cullen, Ch. J., Gray, Edward T. Bartlett, Hisoock and Chase, JJ., concur; O’Brien, J., absent. Order reversed, etc.