Georke Co. v. Wadsworth

Emery, Y. C. (after statement). A right of way which had never existed as such previously to the lease, and over the remaining premises of the lessor, is not created by and cannot pass under the general word “appurtenances” in the lease. Stuyvesant v. Woodruff, 21 N. J. Law (1 Zab.) 133 (Supreme Court, 1847); Fetters v. Humphreys, 19 N. J. Eq. (4 C. E. Gr.) 475, 476 (Court of Errors and Appeals, 1868); Hazeldine v. McVey, 67 N. J. Eq. (1 Robb.) 275, 277 (Vice-Chancellor Stevens, 1904). On severance of the premises, it may, as a way of necessity, pass with the lease of a portion of the premises, by implication of law, as appurtenant to the [454] premises, without the use of the word “appurtenances.” Fetters v. Humphreys, supra; Newhoff v. Mayo, 48 N. J. Fq. (3 Dick.) 619, 624 (Court of Errors and Appeals, 1891). An easement by implication' of law is raised in the absence of any express contract in reference to the easement, and the question in this case relates to the effect of the express provisions in the lease as to another means of access, upon the easement which would have been raised by implication of law, had no contract for other access been made. The maxim of construction expressum fácil cessare taciturn, controls the case on this point, and the express contract for another way of access which the lessee had the right to provide, before the commencement of the term, prevents the creation of another easement by implication. Nor can it be considered that because it was contemplated that there might be a failure to procure the proposed new access, the new way was to be substitutional only, and the easement by the stairway was, by implication, to continue subject to the substitution of the new •wav, or was to revive on its failure. The reason is that the same maxim of construction is again applicable, and the express contract as to the rights of the parties, made in reference to this contingency, also prevents the raising of this implied easement, and prevents the remittal or restoration of the parties to the estates which the law would have implied in the absence of any express contract as to the right of complainant, on the failure of the new access. The provision that the lessee might enter before the term for the purpose of making the new access, and the making of this new access and the closing of the stairway, before ■the commencement of the term, by permanent flooring, in which both parties joined (the defendant, by removing the balustrade, and the complainant, by making a permanent flooring), shows, I think, that during the term the only access to the premises, in relation to which both parties meant to contract by the lease, was the access contemplated to exist and actually existing when the term was to commence, and not the access when the lease was dated. If the sole question, therefore, were one of complainant’s legal right to the use of the stairway, or of a substituted way, other than the one expressly referred to, I should be of opinion that there was no legal right to be protected in equity. But a [455] court of equity does not usually undertake to settle, in the first instance, questions of doubtful legal right, and the precise question at issue here is the narrower one, whether a mandatory injunction should issue compelling the restoration of the stairway, or whether complainant, for the protection of any legal right it may have to the use of this stairwaj', should be remitted to an action at law. A restoration of the stairway and the establishment of complainant’s right to use it as it existed at the date of making the lease, would, as it seems to me, carry with it the right to use defendant’s store for access to the upper stories for any purpose within complainant’s legal rights of occupation under its lease, and would or might seriously affect defendant’s business, and his occupation of the first story for the purpose of his business, in a manner not contemplated by the parties at the time of making the lease and fixing the rental. Any new substituted way which complainant would have the right, under its lease, to make, for complainant, would apparently be located wholly within the walls of the first story, and necessitate similar interference with defendant’s business. Assuming, therefore, the existence of anjf such right of substituted way, there would be the same objection to its creation by mandatory injunction. On the whole case, therefore, I conclude that if the complainant, on the failure of the new access, insists upon its right to other protection than that .of terminating the lease, and has such additional right, the legal remedy by damages for interference with it, is the remedy to which it should be remitted. The bill will be dismissed without prejudice to an action at law.