Raleigh Savings Bank & Trust Co. v. Vass

Hoiie, J. From the facts presented in the case agreed, it appears that defendant W. W. Vass, as individual and trustee, owning a business lot abutting on Wilmington and Hargett streets, on 10' October, 1913, sold and conveyed to A. B. Andrews the lot and building situate thereon at the intersection of said streets, described as follows: “By a line-beginning at the intersection of the east side of Wilmington Street with the north side of Hargett Street in said city, running eastward along the north line of Hargett Street 89 feet to the center of the eastern wall of the building now located thereon and occupied by M. Eosenthal as a grocery store; thence northward in the direction at right angles to said Hargett Street along the center line of the eastern wall of said present building,” etc. And in said deed is also conveyed a right of way back of said building in terms as follows: “Also -a right of way in and over an 8-foot alley *300 way, immediately east of the above described lot and premises, which is to be maintained permanently as an alleyway 8 feet wide,” etc. Subsequently, said W. W. Yass sold and conveyed to defendant Koonce “the remainder of said lot east of the center line of the eastern wall of the corner building, subject, however, to the alleyway rights described in the deed to A. B. Andrews, deceased,” and the question is on the right of defendant Koonee to build over said alley and adjoining his building to said eastern wall, leaving room for the convenient use of the alley as an ordinary right of way, affording access to the buildings, etc. On these the facts chiefly pertinent in so far as the deed to A. B. Andrews purports to convey a right of way affording access to the buildings, it is very generally held that the owner of the servient tenement may build over the same so as not to interfere with the. reasonable and ordinary user of the easement as described and specified in the deed. Duncan v. Goldthwart, 216 Mass., 402; Crocker v. Clothing et al., 181 Mass., 146; Bitello v. Lipson, 80 Conn., 497; Grafton v. Moir, 130 N. Y., p. 465; 19 Corpus Juris, p. 985; 9 R. C. L., p. 799. In the digest of the Connecticut case, appearing in 16th 1. R. A. (N. S.), at p. 1931, it is said: “A grant of an easement of a way with no mention of light and air does not prevent the owner of the fee from interfering with the light and air by placing structures over the way in such a manner as not to interfere with its reasonable and ordinary use.” And in the citation to Corpus Juris, the general position on the subject is very well stated as follows: “Unless it is clear from the language of the grant or the surrounding circumstances that the parties intended to have the passageway remain open to the sky, the owner of the servient estate may extend buildings or other structures over a way, provided in so doing he does not interfere with the free use of the way; 'and he will not be liable for damages, although the passageway, by reason of its being so covered, becomes to a greater extent the resort of strangers, to the annoyance of the grantee of the easement. The owner of a right of way has no claim to light by any passage other than that of the way itself, and he is not entitled to have light and air pass over the way to any greater extent than is necessary for the enjoyment of the right of passage.” We do not understand that appellant seeks to challenge the general position, as stated, but in his interesting and able argument, counsel contended that same should not prevail on the facts of this record by reason of another' well established principle, stated in Jones on Easements' as follows: “That where one conveys a part of his estate he impliedly grants all those apparent and visible easements on the part retained which were at the time used by the grantor for the benefit of the part conveyed, which are reasonably necessary for the use of that part.” *301 This position, in proper instances, is well supported by authority, and has been fully recognized and upheld in recent decisions of this Court, where the apparent easement is continuous and permanent in its nature. Meroney v. Cherokee Lodge, 182 N. C., 739; Lamb v. Lamb, 177 N. C., 150; Tiedike v. Lipman, 76 Atl. (N. J.), 463; Fowler v. Wick, 74 N. J. Eq., 603; Wilson v. Riggs, 27 App. Cas., D. C. P., 550. But in these and other authorities pertinent to the question it is always fully understood that such an implied grant is subject to be modified or controlled by the express terms of the deed and the facts and attendant circumstances relevant and permissible to its proper interpretation. In applying these principles to the ease presented, it must be borne in mind that this is business property, where it is not customary to allow for light and air on the side of adjoining buildings. The rule is, unless otherwise specified, that you will build right up, one building against the other, and not only is this the custom in property along an active business street, but here the deed itself, under which plaintiffs claim, provides that their line shall not extend beyond the center of the eastern wall, thus expressing a clear purpose to restrict any implied grant of light and air by reason of the existence of the windows in said wall, and to reserve the right to build and use the remaining half when desired, subject only to the ordinary and reasonable use of the alley. In construing deeds and instruments affecting property, it is the fully accepted rule “that the intent of the parties, as embodied in the entire instrument, shall prevail, and each and every part shall be given effect if it can be done by fair and reasonable intendment.” Bowden v. Lynch, 173 N. C., 203; Davis v. Frazier, 150 N. C., 447. Considering, then,- the nature of this property and the facts and attendant circumstances, this description of the deed conveying to plaintiff’s ancestor only to the center of the eastern wall of the building and reserving to Yass, the grantor, the other half of said wall, could only have meant that the parties contemplated joining to this wall when the exigencies of business should require it, subject to the rights of the alleyway specifically described in the deed. Any other interpretation would be to deprive this important and formal portion of the conveyance of any and all significance. TJnder the facts as they existed, and in reference to which the parties dealt, what possible good could the one-half of the wall ever do or be to the owner if the alley was to extend indefinitely upward, and thus shut off all user of the title and privilege reserved by the grantor. On the record, we think his Honor has entered the proper judgment, and the same is Affirmed.