Dyer v. Sanford

Shaw, C. J. This was an action on the' case, for damage alleged to have been done by the defendant, in erecting a house on his own land, in such a manner as to obstruct the light and air which the plaintiff was entitled to through his staircase window. This was not claimed as a right by — 401 — prescription, for light and air through an ancient window, but as a right reserved in a deed from Nathaniel T. Tilden, administrator of the estate of Christopher Tilden, under which the plaintiff claims, to Thomas Davis, under whom the defendant claims. 1. The defendant offered evidence tending to show that Elizabeth Tilden, the widow of Christopher Tilden, having a right of dower in the estate, and being in the occupation, gave a license, by parol, to Thomas Davis, to erect a building in such manner as to obstruct the air and light, in whole or in part; also that some obstructions were afterwards erected, by persons in the occupation of the defendant’s estate, extending to a period of ten or twelve years; and upon these facts, if established, contended that it ought to be submitted to the jury, to prove a license, by the owners of the plaintiff’s estate, to the owners of the defendant’s estate, to shut out and obstruct the light from entering said window ; and that such license was not revocable by the plaintiff. He also contended that, in fact, the easement in question, if it ever existed, had been lost by non user and cessation of enjoyment; and that, if not so extinguished, yet the right to light and air was to such only as could be received, if the estate, derived by Davis from Tilden, and out of which the light was reserved, had been left open and unobstructed; which was the distance of about |wo feet from the window. All these objections to the plaintiff’s claim were overruled, and the question of damages was left to the jury. We think there is a distinction between an executed license to impede or obstruct an easement of this description, and an abandonment of the easement. It may well be maintained, on the authorities, that the owner of a dominant tenement may make such changes in the use and condition of his own estate as, .in fact, to renounce the easement itself; and this may be relied on by the owner of the servient tenement as evidence of abandonment. So, if the owner of the dominant grants a license to the owner of the servient tenement, to erect a wall which necessarily obstructs the enjoyment of the ease — 402 — ment, and it is erected accordingly, it may amount to proof of an abandonment of the easement. It is not a release, because it is by parol. But it results from the consideration that a license, when executed, is not revocable; and if the obstruction be permanent in its nature, it does, de facto, terminate the enjoyment of the easement. But the license is for the specific act only; and if, when executed, it is of such a nature as, de facto, to destroy the easement, but is only temporary in its nature, or limited in its terms, then, as the easement is not released, when the obstruction erectéd in pursuance of such specific license is removed, the owner of the servient tenement cannot erect another obstruction of the same, or of a different kind, without a new license. But as, by the rules of law, an easement is an interest in land, to be acquired and released only by deed, as between the parties respectively, when it is contended that the owner of the dominant tenement has voluntarily abandoned his right, so as, de facto, to withdraw the incumbrance from the servient tenement, without a release to its owner, the proof must go to this extent: First, that the acts relied on were voluntarily done by the owner of the dominant tenement, or by his express authority ; secondly, that such party was the owner of the inheritance, and had authority to bind the estate by his grant or release; and thirdly, that the acts are of so decisive and conclusive a character as to indicate and prove his intent to abandon the easement. Moore v. Rawson, 3 Barn. & Cres. 332, and 5 Dowl. & Ryl. 234. Various illustrations might be given of such conclusive acts of abandonment; as when one takes down the building in which a window was placed, and erects on the site a permament tenement, so constructed as not to require, or even permit, a window similarly situated; or when one grants an express license to do acts on his own land, the necessary effect of which is to take away or impair the easement permanently, and the acts are done accordingly. Liggins v. Inge, 7 Bing. 682, and 5 Moore & Payne, 712. In the present case, applying these principles to the subject, we are of opinion that the evidence did not warrant the jury — 403 — to find an extinguishment of the easement. The license in question, and the acts done under it, could not operate as a release, because not in writing ; nor as an abandonment, because Elizabeth Tilden was not the owner of the inheritance, and had, at most, a right of dower in the premises, and the occupation, as guardian of her children, or otherwise; nor could it operate as proof of release by adverse possession, because it had not continued a sufficient length of time. 2. It is contended that there was a misdirection by the Judge, in stating that the reservation, in the deed from the devisees of Thomas Davis to Ivers, precluded the defendant from setting up the supposed agreement between Elizabeth Tilden and Davis, in the life time of the latter. But the court are of opinion that this direction was right. The theory of the defendant is, that, by some parol license or agreement, Elizabeth Tilden had abandoned or relinquished to Davis the easement reserved in favor of Christopher Tilden’s house, so that Davis held it free of that incumbrance, and devised it by general words of description, and died. What then were the circumstances under which the devisees were about to sell their estate to Ivers ? They were about to convey the estate with warranty. The deed recites the several deeds under which their devisor claimed title, one of which was the deed from Nathaniel T. Tilden, administrator of Christopher Til-den, containing the reservation in question for the benefit of the house belonging to the heirs of Christopher Tilden, which deed was on record. Now, if they knew that a parol license had been given, or an agreement made between Mrs. Tilden and their devisor, by which the easement was suffered to be extinguished or suspended, they might also know, or believe, either that she had no such authority, or that the obstruction which was authorized was temporary, or partial and conditional. They must have known, that whether it was ever made depended on parol proof, and did not, like the reservation itself, appear of record. If, for these or any other causes, they did not claim such abandonment, but admitted the continued existence of such easement, and conveyed the estate — 404 — subject to it, the loss was theirs, and not that of the grantee. When, therefore, they conveyed the estate to Ivers, with an express reservation of such easement, for the benefit of Til-den’s house, we think the defendant, who is privy in estate with Ivers, is precluded from setting up such supposed abandonment to Davis. Ivers, by accepting the deed with such reservation, admitted the existence, at that time, of such easement in the proprietors of Tilden’s estate, as an incumbrance on the estate conveyed. 3. The next direction given to which the defendant objected was, that by force of the reservation in the deed to Ivers, taken in connexion with the reservation in the deed from Tilden to Davis, the heirs of Tilden acquired a right to so much air and light as would come to said window over the space then open between said window and Davis’s buildings, being in part over Davis’s land, and was not confined to the air and light coming over the two or three feet of land conveyed by the same deed from Tilden to Davis. This instruction, we think, was not justified by me case. In general, a reservation, like an exception, is something to be deducted from the thing granted, narrowing and lim iting what would otherwise pass by the general words of grant. It is well established, by the facts in this case, that at the time of the conveyance from Tilden to Davis, Tilden’s was a modern house, and had acquired no right of light and air, for the staircase window, over Davis’s land. Davis then had a right to build a wall quite on the extremity of his south era line. Was Davis’s right to build on his own land diminished by his acceptance of this deed ? We think not. A case was cited from New York, by the plaintiff’s coun sel, to show that a reservation may be made of something not coming out of the estate granted, but from the grantee’s own estate. Case v. Haight, 3 Wend. 635. As a proper reservation or exception, we think the principle stated is correct— that it must be something out of the estate granted. But we — 405 — have no doubt, that by apt words, even in a deed poll, a grantor may acquire some right in the estate of the grantee. It is not, however, strictly by way of reservation, but by way of condition or implied covenant, even though the term “ reserving ” or “ reservation ” is used. If a grant is made to A., reserving the performance of a duty, to wit, the payment of a sum of money to a third person, for the benefit of the grantor, an acceptance of the grant binds A. to the payment of the money. Goodwin v. Gilbert, 9 Mass. 510. So where a demise is made to A., reserving a rent in money or in service, it is not strictly a reservation out of the demised premises ; but the acceptance of it raises an implied obligation to pay the money. So we think a grant may be so made as to create a right in the grantee’s land in favor of the grantor. For instance ; suppose A. has close No. 2, lying between two closes, Nos. 1 & 3, of B. ; and A. grants to B. the right to lay and maintain a drain from close No. 1, across his close No. 2, thence to be continued through his own close, No. 3, to its outlet; and A., in his grant to B., should reserve the right to enter his drain, for the benefit of his intermediate close, with the right and privilege of having the waste water therefrom pass off freely through the grantee’s close, No. 3, forever. In effect, this, if accepted, would secure to the grantor a right in the grantee’s land ; but we think it would enure by way 'of implied grant or covenant, and not strictly as a reservation. It results from the plain terms of the contract. But there is nothing in the terms of the reservation, in the deed from Tilden to Davis, which imports or implies any larger claim for air and light to this window than the owner lawfully had before. It is a simple reservation or exception, from the operation of the grant, of a right already existing, and nothing more ; and that too, in a deed by an administrator, executing a power over the estate of his intestate, and not acting, or professing to act, for the heirs. Besides; the right reserved is to keep open the staircase window. It is not even said for air and light; and that it was so intended, results only from reaso rabie implication. As the direct and ordinary pur — 406 — pose of a deed poll is to transfer the rights of the grantor to the grantee, a grant, covenant or promise, by the grantee to the grantor, is not to be implied, except from such plain and express terms as will show that such was the intent of the grantee, manifested by his acceptance of the deed. On this last ground, the verdict is set aside, and a new trial granted.