Fowler v. Wick

Leaming, V. C. The law of this state is well settled to the effect that where one who. is the owner of two. adjacent lots of land, on one of which is a house with an apparent and continuous use of light and air over the other lot through windows in the building, conveys away the lot on which the building is erected and retains the other lot, there arises, in the absence of any express provision to the contrary, an implied grant of the right to the light and air which have been enjoyed through the windows over the other property. In such case the grantor cannot derogate from his own grant by building on the remaining lot so as to obstruct or materially interfere with the enjoyment of light and air through those windows. The rights and obligations arising from the implied grant may be enforced by and against the subsequent grantees of tire respective parties. Sutphin v. Therkelson, 38 N. J. Eq. (11 Stew.) 318. It has been held, however, that the quasi easement founded on the impHed grant will not arise unless at the time of the severance of title the reception of light and air through the then existing windows was reasonably necessary to the enjoyment of the building. Greer v. Van Meter, 54 N. J. Eq. (9 Dick.) 270, 272. This latter view has met some criticism in this state, but appears to be the accepted law of this court. Toothe v. Bryce, 50 N. J. Eq. (5 Dick.) 589, 595. In the present case there can be no doubt but that the window in the first story of the main building and two windows in the second story of the main building were reasonably necessary to the enjoyment of the building at the time of the severance of the title. It is scarcely possible to assume that the continued presence of these windows was not in mind of the parties at the time of the sale. It is probable that the windows in the annex may also be said to have been reasonably necessary to its enjoyment, but the testimony touching the location of the windows of the annex and the relation of its windows to its interior arrangements is so vague and uncertain that it is difficult to positively assert', the fact. Assuming that all windows in both the main building and the annex were, at the time of severance, reasonably necessary for [608] ilie enjoyment of the property, and that the Stokes’ deed operated to create a right in the nature of an easement in favor of the property conveyed, as the dominant tenement, for the unobstructed use of light and. air through these windows passing over the property reserved, as the servient tenement, the question arises, to what extent, if any, has the right so created been lost ' by reason of the changes which have been made in the building ? The opinion of Vice-Chancellor Reed in City National Bank v. Van Meter, on the subject of extinguishment of rights of this nature, reported in 59 N. J. Eq. (14 Dick.) 32, was adopted by the court of errors and appeals. 61 N. J. Eq. (16 Dick.) 674. It was there determined that the destruction of a building and the erection of a new one, with a window in substantially the same place, would not operate to extinguish the easement; that abandonment is a question of intent, ánd that an intention to abandon will be inferred “if the building is torn down and the locality of the old windows from delay in rebuilding or from failure to preserve evidence of their situation, cannot be proved.” The application of these principles to the facts already stated renders it manifest that in remodeling the main building in such manner that the single window in the first story and the two windows in the second story occupied substantially the same place and performed the same duties as the pre-existing window, the right of complainant to the continued use of these windows was not lost, but in wholly destroying the rear annex and erecting in its place a new building without reference to. any feature of the one destroyed and without preservation of evidence of the situation of the old windows or doors, so that at this time it cannot be ascertained whether any aperture corresponds with any previous one either in location or office, an abandonment of fhe rights claimed under the original grant must be assumed. It follows that an injunction may issue restraining defendant from obstructing the influx of air and light through the three windows referred to in what was formerly the main building, but that defendant cannot be enjoined from building adjacent to the line opposite to that part of the rear portion of the present building which was formerly known as the rear annex. [609] Complainant also claims a right to the use of a door in the first story of the annex and a right of passage from it over defendant’s land. Whatever right to maintain a door he may have acquired has been lost by its destruction. At present two doors exist and neither can be ascertained to occupy the place1 of the door which was destroyed.. The claim of defendant to right of way over the land on which defendant proposes to build cannot be supported either as a way of necessity or as a right emanating from an implied grant.