Christ Church v. Lavezzolo

Field, C. J. The plaintiff complains of the third paragraph of the decree entered by the Superior Court. The contention is, that by the indenture of April 9, 1841, between the Wardens and Vestry of Christ Church and William Dillaway, Dillaway and his grantees were prevented from opening windows in the brick house on the side adjoining the land of the plaintiff. It has been found by the court that the wall of the house on this side stands about seven and one half inches within the limits of the land of the defendants; and that the wooden house mentioned in the indenture “ referred to a wooden house which stood upon land in the rear, and adjoining, but not parcel of, the estate now owned by the defendants.” It seems that Dillaway, when he executed the indenture, owned two estates, on the first of which was a brick house, and on the second, which was in the rear of the first, was a wooden house; that the walls of the brick house are the same which existed at the date of the indenture, except that they have been built several feet higher; and that the estate on which the brick house stands has been conveyed to the defendants, but that the other estate has not. By the indenture Dillaway covenanted that he would cause a door opening from his brick house upon the land of the plaintiff to be closed up, it being agreed that a window might be put in place of the door. There are no covenants that other windows shall not be opened in the wall of the brick house, and none can be implied from the covenants concerning the windows in the wooden house. The release by Dillaway of “ all his right of passage, if any, or right to swing doors or blinds in and upon the land of ” the plaintiff, “ and all other rights which he may have in or upon the said land, excepting, however, the privilege of swinging blinds to those windows now existing,” etc., does not touch the right to open windows in the wall of his brick house which stood “ about seven and one half inches within the limits ” of his own land. This right to open windows is not a right in the land of the plaintiff, and cannot by long continuance, under our laws, become a right or easement in its land. Decree affirmed,