Grafton v. . Moir

Vann, J. The right of the defendant to erect the building in. question depends upon the reservation contained in the deed *470 dated June 1, 1852, by which the original proprietor of the four lots conveyed the first to the defendant’s grantor and is not at all dependent on the reservation in the later deed, dated December 31, 1852, by which said proprietor conveyed the third lot to the plaintiff’s grantor. The rights of the defendant were defined and fixed by the earlier conveyance and were not cut down or affected by the later conveyance to which he was neither party nor privy. The reservation in the deed under which the defendant claims, and which created the easement over the alley so far as it affects his premises, is in these words: “ ¡Reserving, nevertheless, to the owners and occupants of the three houses and the three stables on the easterly side of Fifth avenue, next north of the premises above conveyed, the right of way through and over the carriage or alley-way in the rear of the said above-granted premises to the three stables next north of the one standing on the rear of the above-granted premises, as long as the said three stables shall be occupied as private stables.” As the conveyance was in fee, it vested in the grantee and his assigns all the rights of absolute ownership, except as restricted by the reservation, which, being in favor of the grantor is to be construed most strongly against him. (Duryea v. Mayor, etc., 62 N. Y. 592, 597; Borst v. Empie, 5 id. 33, 39; Jackson v. Blodgett, 16 Johns. 172; Jackson v. Gardner, 8 id. 394; Ives v. Van Auken, 34 Barb. 566.) The reservation is of “ the right of way through and over the carriage or alley-way ” to the stables and is to continue as long as the stables are “ occupied as private stables.” The grantor did not reserve the alley-way, itself, but the right of way over it, which means simply the right to pass over it. (Bodfish v. Bodfish, 105 Mass. 319; Kripp v. Curtis, 71 Cal. 63; Stuyvesant v. Woodruff, 1 Zab. 133; Williams v. W. U. R. Co., 50 Wis. 76; 2 Washburn on Real Prop. 275.) The right of way was not reserved for all purposes, but for the use of private stables only, as the right continues while the buildings are used for that purpose and ceases when the *471 specified user ceases. It was not bounded or defined, except as it was limited to the use named. Nothing except a right of way as thus limited, was reserved. While, the.. all&y.Avay>,_as laid out at the date of the grant, was eighteen feet wide, the right to pass ovei^evefy'palTuof-that' eighteen" feet was not reserved, unless that right was necessarymnjsrder, to_pass. and repass in theusuai way jnWwith_,1ihe.usual means, .between the stables 'an5Tthe street. The use by the grantor of the words “carriage or alley-way,” in the alternative indicates that he regarded “ carriage-way ” and “ alley-way ” as meaning the same thing and that he meant by neither the alley as laid out, but the carriage-way that passed over the alley. In fact he did not use the word “ alley ” by itself, at all, but he is presumed to have had in mind the existing condition of things upon which his conveyance was to operate. Thus we have a right of way reserved, but not specifically defined and the rule in such cases is that the way need be only such as is reasonably necessary and convenient for the purpose for which it was created. (Atkins v. Bordman, 2 Metc. 457; Bliss v. Greeley, 45 N. Y. 671; Bakeman v. Talbot, 31 id. 366, 370; York v. Briggs, 7 N. Y. S. R. 124; Maxwell v. McAtee, 48 Am. Dec. 409; Rexford v. Marquis, 7 Lans. 249; Matthews v. D. & H. Canal Co., 20 Hun, 427; Spencer v. Weaver, Id. 450; Tyler v. Cooper, 47 id. 94; affirmed, 124 N. Y. 626; Washburn on Easements, 244; Goddard on Easements, 333.) When the right of way is not bounded in the grant, the law bounds it by the line of reasonable enjoyment. The defendant, as owner of the land, has the right to use it in any way that he sees fit, provided he does not unreasonably interfere with the rights of the plaintiff. All that is required of him is that he shall not so contract the alley-way, either vertically or laterally, as to deprive the plaintiff of a reasonable and convenient use of the right of passing to and fro. Thus the grant of a right of way “ through and over ” a space twenty feet wide, was held to be “ the grant of a convenient way within those limits.” (Johnson v. Kinnicutt, 56 Mass. 153.) *472 As is said in Goddard on Easements (p. 332): “A right of way along a private road belonging to another person does not give the dominant owner a right that the road shall be in no respect altered or the width decreased, for his right does not entitle him to the use of the whole of the road, unless the whole width of the road is necessary for his purpose, but is merely a right to pass with the convenience to which he has been accustomed; "x" *• * and even where a right of way was granted ovef certain roads marked on a plan, and one was described there as forty feet wide, it was held that the grantee was entitled to only a reasonable enjoyment .of a right of way, and that such reasonable enjoyment was not interfered with by the erection of a portico, which extended a short distance into the road, so as to reduce it at that point to somewhat less than forty feet.” (Citing Cifford v. Hoare, L. R. [9 C. P.] 362; Hutton v. Hamboro, 2 Foster & Finlason, 218.) Was eighteen feet in width, or more than eleven feet in heightli, essential to the reasonable enjoyment by the plaintiff of a mere right of passing to and fro with such vehicles as are used at private stables % Is not the right of way, as it now is, all that is reasonable and necessary for the purpose for which it was granted ? When the terms of the reservation are considered in connection with the nature and condition of the premises granted at the time of the execution of the deed, the purpose that the parties are presumed to have had in view and the use which in practice they have made of the way, as found by the trial court, we are of the opinion that the defendant has not interfered with the reasonable enjoyment by the plaintiff of the easement created by the grant. It is insisted, however, in behalf of the plaintiff, that he is entitled to the light, air and ventilation coming through and over the open space which constituted the alley at the date of the deed. If the alley itself had been reserved, or the right to use it for every purpose, a different question would have arisen, but neither the alley nor the alley-way was reserved, nor anything except the right of way over the alley-way or carriage-way. The language of the reservation confers upon the *473 plaintiff simply the right of passage and, as incidental r thereto, such light and air as are necessary to the convenient enjoyment of that right. There is no provision which expressly or impliedly requires that the entire space at the rear of defendant’s building shall be kept open forever, so that the plaintiff’s stables may have air and light. A right of way to a stable does not carry with it such light and air as the stable needs, but such as the right of way needs for its reasonable enjoyment. As was said in Atkins v. Bordman (supra), the leading case upon the subject: “As to the darkening * * * the defendants were not liable for damages, unless, from the length of the passage-way, it was so darkened as to render it unfit for the purposes of a passage-way. We may conceive of a covered passage of eight or ten feet high, of a length so considerable that unless openings were left, there would not be light enough admitted at the ends to enable persons to use it with comfort for the purposes of a passage-way, but unless darkened to that extent, it is not a case for damages.” (Citing Barker v. Smith, 5 Car. & P. 438; Back v. Stacey, 2 id. 465; Wells v. Ody, 7 id. 410; Pringle v. Wernham, Id. 377.) In Gerrish v. Shattuck (132 Mass. 235), the defendant built over “ a passage-way four feet wide ” that had been reserved “ in, through and over ” certain premises, but placed no part of his building on the surface of the ground and left the way unobstructed for a reasonable height above. It was held that the plaintiff, as the dominant owner, had “ no right to light and air above the way,” and that she had. “ only the right of passing and repassing, with such incidental rights as are necessary to its enjoyment.” To the same effect is Burnham v. Nevins (144 Mass. 88). But where the easement was “ a passage-way five feet wide in the clear for light and air” and “ always to be kept open for the purpose aforesaid,” it was held that the dominant owner had a right to the open and unobstructed passage of light and air from the ground upwards and throughout the length of the passage-way. (Brooks v. Reynolds, 106 Mass. 31.) If the alley-way in question had been protected by a restric *474 tian of that kind, the claim of the plaintiff would have had a basis in the deed, which would have shown on its face that it was the purpose of the parties to create something more than a mere right of passage. As it is we can find no such intention, because, as we have held, the deed calls f@r a right of way and nothing more. The space at the rear of the plaintiff’s premises is under his exclusive control, subject to the right of way over it, and he can ventilate and light his stable by keeping that space open, but he cannot prevent his neighbor, two doors away, from building on his own land, even if it cuts off some light and air, as long as a suitable passage is left open, with enough light and air to conveniently use it. Upon the facts as found and under the conveyance as we construe it, no right of the plaintiff has been interfered with by the defendant, and the judgment should, therefore, be affirmed, with costs. All concur. Judgment affirmed.