McCullough v. Broad Exchange Co.

Laughlin, J.: The action is brought to obtain .a- decree forfeiting and extinguishing the easement of the defendant, The Broad Exchange Company,, for ingrpss and egress through an alley way from its premises, formerly known as No. 52 Exchange place, over an open area andi plaintiffs’ premises to Beaver street. The easement was granted! in a partition deed bearing date the 20th day of June, 1879,. which embraced premises Nos. 38, 40, 42 and 52 Exchange place,. Nos. 25, 27 and 29 William'street, and 51- and 53 Beaver street,, and the buildings and premises in the rear. The defendant,. The Broad Exchange Company, has succeeded to the title, to the premises No. 52 Exchange place and the building in -the rear thereof,, and the plaintiffs own the premises Nos., 51 and 53 Beaver street. The easement related to' an irregular open area in the interior "of the block inclosed by the premises partitioned, all of which abutted thereon, and to a covered alleyway ten feet in width over the premises 51 Beavér street connecting the open area with Beaver street. It was expressly covenanted “ that for the mutual advantage of all the property ” partitioned and conveyed the open area “ shall he ■ forever left as an open space, and shall be unencumbered by any erection (except such walks as now cross the same), for the purpose of giving-light and air and ingress to and egress from all the prenb ises herein described; said open spaces as they now exist shall be — 569 — maintained in good order and kept in cleanly condition at the joint and equal expense of all parties hereto,” and that the eovenánfc should be held to be a covenant running with the land. The covenant with respect to the alley is.that it “shall forever be left open to the present height of the same, as a means of ingress and egress •for the advantage of all the property hereinbefore conveyed and partitioned.” It appears that at the time the partition deed was " executed there were two low brick buildings on the premises known as No. 52 Exchange place, the one fronting on the street covering the lot to the depth of 107 feet and the one in the rear being 34 feet in width, covering the lot within a few inches, and 116 feet in length. Both of these were office buildings. Prior to the commencement of the action the defendant, The Broad Exchange Company, became the owner of four lots known as Nos. 44, 46, 48 and 50 Exchange place lying immediately to the east of its premises No. 52 Exchange place, having an aggregate frontage of about 89 feet.and 6 inches and extending in depth 102 feet and 4 inches, and of several irregular lots adjoining No. 52 Exchange place on the west known as Nos. 54 and 56 Exchange place and Nos. 25, 27, 29, 31 and 33 Broad, street, having an aggregate frontage on Exchange place of about 124 feet and 9 inches and of 106 feet and 8 inches on Broad street. None of these lots except said No. 52 Exchange place was embraced in the partition deed or had appurtenant to it any right or interest in the covenants or easements mentioned in the partition deed. These several lots together formed practically a parallelogram 236 feet long on Exchange place and 106 feet wide on Broad street with the addition of the lot about 34 feet wide by 116 feet deep in the rear of the center of the parallelogram", it being the lot in the rear of No. 52 Exchange place and entitled to the enjoyment of the easement in connection therewith and for brevity in the opinion it will be deemed part of and referred to as No. 52 Exchange place. The Broad Exchange Company is a New Jersey corporation and after acquiring title to these lots and about the 1st day of May, 1900, it caused plans to be prepared for the erection of a single office building thereon twenty stories in height with front entrances on Broad street and Exchange place and a door in the rear opening upon that part of the premises which was dominant to the easement upon the rear courtyard or open space — 570 — referred to in the said partition • deed. This building was designed for the acqommodation of about seven thousand occupants, and was to have eighteen passenger elevators and a common heating and power plant for all. The building was constructed in accordance with- the plans-by the defendant George A. Fuller Company for the Bl’oad Exchange Company, and prior to the trial of the action- it was completed and opened for the reception and occupation of tenants. The boiler and machinery for heating the building and operating the elevators are in that pkrt of the premises appurtenant to ■ the easement, but the heat and power -are distributed into those parts of the' building beyond the lines of the Original lot No. 52 Exchange place, which alone was dominant to .the-easement. It is ■ found by the court that the building was erected without'regard to the lines of lot No. 52 Exchange place, and that it was designed as one concrete structure with connecting halls and stairways- throughout, and with interdependent relations between its various parts. The office space in that part of the building standing upon the lot formerly known as No. 52 Exchange place constitutes only oné-fifth of the ■ entire office space of the building. The average consumption of coal for the'generation of heat and power in the building is between • twenty and twenty-three tons per day. When the building was planned it was intended that the coal should be brought in through this alley and across the open area and transmitted to tire furnace ■room through coal chutes,, and this course has been .taken. The ashes from the furnace were designed to bezand are removed over the areaway and through the alley. Each of the 'eighteen passenger elevators affords access to any part, of the building, and. eight of them are entirely upon the .original dominant lot and seven others, are partly over it. The waste paper, sweepings and' refuse from the entire office building are deposited in bins, near the door opening into the open- area referred to and removed via the ’alley. Employees and tenants of all parts of the building may use the doorway-opening upon the area, at will for passing out ■ to ' Beaver street or-to the building from Beaver street, and some of them avail themselves of the "opportunity thus afforded for-using the area and alley. The trial. court has found' that by thus constructing and using the office building the appellant Owner has “ so materially-changed the condition of the originally dominant tenement as to — 571 — increase the burden of the servitude upon the servient tenement of the plaintiffs, and to subject the servient tenement to the service of premises other than the premises originally dominant, and to render it impossible to separate the enjoyment of the original right from the enjoyment of the excess beyond the original right, and to make impossible the legitimate use of said easement.” It has accordingly been decreed that the appellant owner has forfeited all its right to the enjoyment of the easement, and that the same is forever forfeited and extinguished, and it is perpetually enjoined from using the same. We find no definite evidence indicating that it would be feasible . or practicable to alter the building in such manner that the tenants of that part of it which is constructed on the premises formerly known. as No. 52 Exchange place might be separated from the others, and in the exercise of the lawful fights of the appellant owner be permitted ■to use the alley and areaway for ingrbss and egress or that the power plant and other use of which complaint is made might be likewise separated. However, it is not impossible to make this separation —it is self evident that it is only a question of expense — and if the owner wishes to do so we see no reason why it should not be permitted. Moreover, the office building may be destroyed or otherwise demolished or removed at any time, and in that event it would seem that the owner should be permitted to enjoy the easement in connection with that part of his premises to which the easement was appurtenant. The erection of the building upon its own land was lawful and does not work a forfeiture of the easement. (Rexford v. Marquis, 7 Lans. 249,1262; Greene v. Canny, 137 Mass. 64; Tapling v. Jones, 13 C. B. [N. S.] 876.) An unlawful or excessive use of an easement maybe enjoined, but it is difficult to see upon what principle of law the court is authorized to declare it for-_ ever and altogether forfeited and extinguished because of an unauthorized or excessive use,. It is a valuable property right and we know of no authority for transferring its title against the will of the owner, except by due process of law involving just compensation. ■It is also conceivable that an authorized and unauthorized use may he‘so intermingled as to justify enjoining any use until the circumstances have so changed that the authorized use may be permitted without affording opportunity for the unauthorized use which it — 572 — would be difficult to discover or prove. If this be the rule, a situation is'here presented justifying an injunction, not against the excessive use merely, but restraining any use until the building is so altered or changed that that part of it which is on the dominant tenement may enjoy the easement without permitting its enjoyment by the tenants and occupants of other parts of the building who have no right thereto. Where the nature and extent of the use of the easement is, as here, unrestricted, the use' by the dominant .tenement might, of course, be enlarged or changed (Allan v. Gomme, 11 Ad. .& El. 759; Arnold v. Fee, 148 N. Y. 214; Gillespie v. Weinberg, Id. 238; Dand v. Kingscote, 6 M. & W. 173; Sloan v. Holliday, 30 L. T. Rep. [N. S.] 757); but the owner of the dominant tenement may not subject the servient tenement to servitude or use in connection with other premises. to which the easement is not appurtenant. (Williams v. James, L. R. 2 C. P. 577.) It is manifest, therefore, that although the 'appellant as owner of the dominant-tenement might have lawfully devoted it to a use that would have authorized and required a greater burden on this easement and right of way than has now been imposed, yet the tenants of those parts of ’ the building not erected upon the premises Ho. 52 Exchange place have no right to use the,easement and the owner has no right to enlarge the use of the easement for the benefit of those parts of his office building which are upon premises other than the dominant tenement. This applies to the removal of ashes, sweepings and refuse as well as to bringing coal. It is not needful to inquire whether the owner of the dominant premises might establish thereon a plant for developing heat, light or power- and transmitting the same to other premises for hire and thus subject the right of way to a more extensive use than that to which it is now put. That might be a question of law and it might be a question of fact depending on the reasonableness of the use. ( Williams v. James, supra.) The case is not analogous to the.present situation. The coal and the heat and; power generated thereby are used directly for the benefit of the dominant tenement and adjacent premises of the appellant owner. It is no different in principle than if there were separate power plants and the coal was passed over the .dominant tenements for use on- the other premises which the appellant clearly would have no right to do. (Skull v. Glenister, 16 C. B. [N. S.] 81; Davenport v. Lamson, 38 Mass. — 573 — [21 Pick.] 72; Webster v. Bach, Freem. 247; Lawton v. Ward, Ld. Raym. 75.) It is to be borne in mind that this right of way and easement were acquired by deed and the rule is that such an easement is not extinguished by - non-user but only by grant or adverse possession. (Smyles v. Hastings, 22 N. Y. 217; Welsh v. Taylor, 134 id. 450; Parker v. City of St. Paul, 47 Minn. 317.) Here there was no adverse possession and nothing has been done with the intention of relinquishing the easement; but on the contrary it has been constantly enjoyed and the complaint merely is of a use-nnauthorized in part. It was formerly held in England that the easement of ancient lights ” might be lost or suspended, until the premises were restored to their original condition, by enlarging or changing the position of the windows, but it is doubtful whether that rule still prevails (Tapling v. Jones, 13 C. B. [N. S.] 876); and moreover it was never given place in our jurisprudence (Parker v. Foote, 19 Wend. 310) and would not be applicable to this case if it had. The appellant and those using the easement without authority would doubtless be liable to the plaintiffs in damages (Dennis v. Sipperly, 17 Hun, 69; Rexford v. Marquis, supra, 249, 262; Davenport v. Lamson, supra Shroder v. Brenneman, 23 Penn. St. 348; French v. Marstin, 32 N. H. 316); but it is manifest that it would be next to impossible to show the damages or to enforce the rights of the plaintiff under an injunction confining the use to the tenants of and those using the dominant tenement. Equity abhors forfeitures and will, in a proper case, relieve against their enforcement, and will not aid their enforcement even where it would not interfere against the same at law. (1 Pom. Eq. Juris. [2d ed.] §§ 450, 459.) Tet the appellant owner is responsible for the situation which enables its tenants and employees to use the easement and render it impossible for the plaintiffs- to know which have and which have not a. right to such use. Therefore, while equity will not destroy the appellant owner’s easement,- it will grant the relief necessary to preserve the rights of the plaintiffs It is manifest that these rights can only be effectively preserved by enjoining the appellant owner from using the easement while its premises remain ,in their present condition. The appeal in form is by both defendants, but it is treated in the — 574 — appellants’ points as being by the Broad Exchange Company only and no point is made that the injunction was unnecessary as against the Fuller Company which has completed its- contract. The judgment should, therefore, be modified by striking out, all provisions relating to a forfeiture of the easement and modifying the injunction so as to enjoin and restrain the appellant owner, its officers, agents and employees, from using the easement and from- furnishing occasion or extending by implication or otherwise any invitation to the tenants or persons having business with the tenants to use the easement until such time- as the building' shall be so changed, altered or arranged as to permit the enjoyment of the easement for the advantage of the dominant tenement only, with leave to the appellant owner to apply to the court at the foot of the judgment, on notice to the plaintiffs or their successors in interest, when- that time shall have arrived, to vacate the injunction as to the dominant tenement, leaving the injunction, however, to stand permanently as to the remaining premises, and as thus modified the judgment should be affirmed, without costs of the appeal to-either party. ' Van Brunt, P. J., Patterson and Hatch, JJ., concurred ; 0’Bri¡en, J., dissented.