Gay v. Walker

Shepley, C. J. — The plaintiff, on May 30, 1835, conveyed to Walter E. Tolman a small lot of land opposite to his store and dwellinghouse. Following the description and preceding the habendum the deed contained these words. “ The said land is to be common and unoccupied.” The defendant being the lessee of those deriving title from the grantee has erected a building upon the lot and occupied it as a store. It is not difficult to perceive, that the intention of the parties by the use of those words was to explain and qualify the grant in such manner, that the land should remain unoccupied in any other manner than commons or squares are usually occupied in villages for the enjoyment of light, air and free passage. It is insisted, that effect cannot be given to the language without a violation of established rules of law, either as a reservation, an exception, or a covenant. That it cannot be regarded as a reservation, because a reservation cannot be made of a part of the thing granted or of any thing repugnant to it, but must be of something not in being and created out of the thing granted. There will not be found any thing repugnant to or destructive of the grant, if it be regarded as thus qualified; for the grantee will not necessarily be deprived of essential benefit from it. He appears to have been the owner of another lot of land separated from this only by a private and narrow way, the value of which might be materially increased by having this remain unoccupied, so that there might be over the whole of this lot free access to that without any obstruction to prevent its being open to the sight of passengers in the adjoining streets. His other lot appears to have been so situated, that it might afterwards be expected to be used for the erection of buildings upon it for the purposes of trade. [61] The rent of such buildings might be expected to be so increased by having this lot remain occupied only as a common, that it would more than compensate the grantee for the amount paid to purchase it. A reservation cannot be regarded as repugnant and void, when the grantee, if it be permitted to be effectual, may acquire a valuable interest in the thing granted. Nor can it in this case be considered void, because it does not reserve something not in being and newly derived from the thing granted. A right of way over land conveyed may be reserved; and yet the grantor would have had the same right to pass over his land before the conveyance, but it would not have existed as a thing separate from the land; and when the land is granted and the right of way is reserved, that right of way becomes in the sense of the law a new thing derived from the land. The owner of land not covered by any erections made upon it may have a free flow of light and air over it to his dwellinghouse built upon adjoining land, and he may convey it and reserve the same flow of light and air over it without obstruction, and such reservation may be good as something not in the sense of the law before existing, but derived from the thing granted. The provision contained in this deed is, in substance, one which secures to the grantor the free flow of light and air over the land granted to his dwellinghouse and store, and an unobstructed view of them and of his other lands, by those traveling in the adjoining streets, as well as an unobstructed view of his lime kilns from his dwellinghouse and store. He had these privileges, while he was the owner of the land conveyed, yet when they were separated from it, they had as a separate matter a new existence. A reservation to be good must also be made to the grantor. It is not the less made to him, if it be so made, that others can derive advantage from it. It will be considered as made to him, when valuable rights are secured to him, although it [62] may be perceived, that others may also be benefited by it. It is admitted, that the plaintiff has suffered injury by a violation of that provision in the deed. Defendant defaulted. Wells, Howard, Rice and Hathaway, J. J., concurred.