Eckert v. Peters

Stevens, V. C. From the foregoing statement of facts it appears that, in 1868, one Green, being seized in fee of two lots — one a fifteen-acre lot not touching the ocean, and the other a sea-front lot, somewhat smaller — conveyed to one Sternberger. In his deed of conveyance, Green, after describing the fifteen-acre lot by metes and bounds, continued as follows: “Together with the free use and full right of sufficient land on my sea front for bathing purposes, with the right to enter thereon, erect bath-houses and use the same free of charge, undisturbed at any time, to have and to hold * * * unto the party of the second part, his heirs and assigns ” &c. The question to be determined is what kind of interest or estate in the ocean-front lot passed by this deed. By apt words, it first conveys to Mayer Sternberger, in fee-simple, the fifteen-acre tract, and then it purports to grant (1) the free use and full right of sufficient land on my sea front for bathing purposes, (2) the right to enter thereon, and (3) the right to erect bathhouses and use the same free of charge, undisturbed at any time. What is meant by “the free use and full right of sufficient land on my sea-front lot for bathing purposes?” If it was intended to grant a right to ba’the in the waters of the ocean, the grant was nugatory, for the grantor did not own the land below high-water mark. If it was intended merely to give a right of passage to the water over the beach, so far as it lay above high-water mark, then this grant seems to be comprehended within — 383 — tlie terms of the specific grant of the right to enter on the grantor’s “ sea front.” Giving to these two grants their utmost legal effect, they are fully satisfied by the appropriation of the strip of land forty feet in width — described in the Mandel deed— to the purposes of a way for bathers from Ocean avenue to the sea.. This way, ever since the year 1881, has been open and used without dissent on the part of anyone interested. Until this suit was commenced, no question was raised about its sufficiency or location. Then, for the first time, so far as the evidence shows, it was insisted by some of the grantees and devisees of Sternberger that they were entitled to a like way over the northerly side of the Eckert lot. I do not intend to assert that the grantees and devisees of Sternberger derive their title to this way under the Mandel deed, the language of which is not broad enough to include them. What I do assert is that a right to a way having been given by the deed from Green to Sternberger, its practical location was defined by Green’s daughter after his death, and that she, with the acquiescence of all parties interested, gave the benefit of it not only to Sternberger and his grantees, but, as she had a right to do, to Mandel and to others as well. So far, the case is free from difficulty. I now come to the right to “ erect bath-houses and use the same free of charge, undisturbed at any time.” Nothing can be more vague and uncertain than this language. The bathhouses are to be erected on the grantor’s “sea front.” Does this mean on any part of the grantor’s land between Ocean avenue and the sea? If not, where is the line to be drawn, west of which there shall be no bath-houses? How many bathhouses and of what sizes may Sternberger and his heirs and assigns erect? There were no improvements on the fifteen-acre tract, and it was probably contemplated by both parties that Sternberger would do just what he afterwards did, viz., divide the property into lots. Was the number of bath-houses that might be erected to be equal to the number of lots into which the tract was to be divided by Sternberger and subdivided by Stern berger’s grantees ? It is manifest that if the grant of this right attached not only — 384 — to the fifteen-acre tract as a whole, but to every — even the smallest — subdivision of it, and the right to erect a bath-house passed, as it is claimed it passed, as an easement appurtenant to each parcel, the grantor practically granted to Sternberger, his heirs and assigns, at their election, for all time, the entire seafront lot, as well as the fifteen-acre lot. I cannot put this construction on the grant. I think it plain that what Green really gave, so far as the right to erect bath-houses is concerned, was not an easement, but a license. If so, then, by the well-settled rules of the common law, such license has been revoked, first, by the death of the licensor; second, by the death of the licensee, Sternberger, and third, so far as the Eckert lot is concerned, by the conveyance, by warranty deed, by Ella Green to Eckert. The fact that an easement was given at the same time that this license was given does not alter the nature of the license. In Thomas v. Sorrel, Vaugh. 351, Chief-Justice Vaughan said : “A license to hunt in a man’s park and carry away the deer killed to his own use, to cut down a tree in a man’s ground and to carry it away the next day after, to his own use, are licenses as to the act of hunting and cutting down the tree, but as to the carrying away of the deer killed and the tree cut down, they are grants.” In like manner, the right of entry on land, given to enable bathers to reach the sea, may well be an easement, enjoyable either by the owner or occupier of the whole or part of the original tract (United Land Co. v. Great Eastern Railway Co., L. R. 17 Eq. Cas. 158; Newcomen v. Coulsen, 5 Ch. Div. 133), while the right to erect bath-houses may be nothing more than a license. That this is so will appear from the following considerations: No present estate in the land was granted. There was given merely a privilege in the future to put up an indefinite number of bath-houses upon an indefinite site for an indefinite period. Such a privilege falls exactly within the definition of a license, viz., “ an authority to do a particular act or series of acts upon another’s land without possessing any estate therein.” East Jersey Iron Co. v. Wright, 5 Stew. Eq. 253. The following cases — 385 — seem to be in point: In Webb v. Paternoster, Rolle 143, 152,. the right to stack hay on the close of Sir W. P. was granted in Wood v. Lake, Say. 3, the liberty to stack coals on defendant’s land for seven years. In each of these cases what was-given was held to be a license. Jackson v. Babcock, 4 Johns. 417, is another illustration. There, C. G., the owner of the land, by writing under his seal, gave to J. H. 11 the privilege, during his pleasure unmolested, to build a house near a pool, free from molestation, disturbance, injury or removal from or under me, for him, the said J. JEL, to inhabit and occupy peaceably during his necessity or pleasure.” Hitchcock built a house and took possession of it, but afterward conveyed his interest. During his life, ejectment was brought against the tenant in possession under J. H.’s grantee. It was held that the writing was a mere license or personal-privilege to inhabit, and conveyed no title. In East Jersey Iron Co. v. Wright, 5 Stew. Eq. 248, the agreement in writing under seal was to give to A. and his heirs and assigns the exclusive right to raise and remove ores from certain land of W. and to erect such works and buildings as were. necessary in conducting their business. It was held by 'Vice-Chancellor Van Fleet that the agreement did not pass any estate or property in the land or minerals, but was merely a license.' The reasoning in that case applies with much force to the ’ present. He says: What is the legal operation of the Rude-agreement? Is it a grant, a lease or merely a license.- The lan- , guage, it will be observed, is purely promissory or executory ‘ It is agreed that Rude and those who succeed to his rights shall-, have the exclusive right and privilege’ &c. Nothing passes presently as under technical words of grant, d'edi et- concessi. To constitute a grant, it is not indispensable that technical words shall be used, but they must be words that will manifest-the same intention. No such words are found- here. The lan-; guage of this instrument is equally inefficacious to manifest a purpose to make a demise. * * * They [the words] must clearly show that the lessor intends to divest himself of posses-' — 386 — sion and that the lessee shall come into it. * * * Unless we attribute to them a significance much more extensive than they have-in legal science or can have in virtue of their own intrinsic force, it is plain that they pass no estate or property in the lands or the minerals deposited in them. They, at most, merely gave Rude authority — we may say exclusive authority — to enter upon the lands of Williams and do a series of acts there for his own profit without passing any estate or property in the land. Such an authorization is a license and not a lease.” The above cases are illustrations of license. The right “ to erect bath-houses and use the same free of charge, undisturbed at any time,” is, in its essential features, strikingly like the authorizations there considered, and, on the other hand, it is •strikingly unlike the various kinds of easements mentioned in the books. This unlikeness would of itself seem to condemn it, for it is laid down that new species of incorporeal hereditaments cannot be created at the will of the owners of estates. Hill v. Tupper, 2 Hurlst. & C. 121; Keppel v. Bailey, 2 Myl. & K. 537. So long as the grantee named in the deed, his heirs and assigns, refrain from erecting these bath-houses, the grantor is to continue in the absolute and unqualified possession of his property. His enjoyment of it is to be without limitation. When, on the other hand, the grantee sees fit to build, all visible dominion of the grantor over the property, so far as built upon, ceases. The possession and enjoyment are then to become exclusive in the grantee, and to remain so as long as the buildings stand and are used by him, his heirs or his or their assigns. What, in such a situation, is there to suggest an easement ? In the words of Lord Campbell, in Race v. Ward, 4. El. & B. 709, a claim which leaves nothing for the owner of the soil is wholly inconsistent with the right of property in the soil. Furthermore, the possession and enjoyment carry with them the profits, but it is said to be one of the essential characteristics of an easement that it confers no right to a participation in profits. Washb. Easem. 3. I am of opinion, therefore, that the authorization in question is not an easement, but a license. — 387 — If it had been, the intention of Green to grant, and of Sternberger to acquire, a stable right to a portion of the sea-front lot, words appropriate to that end might have been found in the very deed we are considering. The definite conveyance of the fifteen acres of upland stands in strong contrast to the vague and indefinite grant of the right to erect bath-houses at the will of the grantee, at any time, upon some indefinite portion of the sea front. Nothing can be gained by permitting parties to complicate titles by the creation of novel rights in real estate having-undefined but enduring incidents. Regarded as licenses merely, -these creations often subserve a useful purpose. They always, until revoked, protect the licensees from responsibility as trespassers. They may sometimes, by reason of equities growing •out of their execution, become irrevocable. The fact that the instrument was under seal, and the fact that it, in terms, gave a license to Sternberger, his'heirs and assigns, •does not alter its nature. If, because it was in writing, it was not open to objection on the ground of the statute of frauds, it was still a license, and being such there was attached to it the necessary incident of being terminable both by the subsequent •conveyance and by the death of the parties. East Jersey Iron Co. v. Wright, 5 Stew. Eq. 253. The complainant is entitled to relief.