The judgment in this action awarded a permanent injunction against the defendant, restraining her from using or permitting the use of her premises as a place for the sale of ales, beers, wines and liquors, for the period of five years from May 4, 1898. The facts upon which the judgment rests were found by the trial court and appear fully in the record without dispute, and, hence, the appeal presents the question whether the judgment is sustained by the conceded and undisputed facts. The defendant owns a block or *Page 156 building adjoining the plaintiffs. The premises of the latter are occupied as a saloon kept by the plaintiff McManus as the tenant of his co-plaintiff. He formerly owned the premises so occupied by him, as well as the land upon which the defendant's building now stands, but a short time before the commencement of this action he conveyed the premises where his saloon now is to his co-plaintiff, continuing, however, the saloon business at the same place under a lease from Uihlein. The defendant having recently erected a building upon her lot adjoining the plaintiffs' leased it to be used as a saloon or place for the sale of ales and liquors. The courts below have enjoined such use of the defendant's premises as in violation of a covenant on her part with McManus. This judgment is in accordance with the theory of the action and the prayer of the plaintiffs' complaint. The defendant contends that no such covenant existed or was in force at the time of the commencement of the action, and this contention involves the construction and legal effect of certain conveyances between the parties.
On the 4th day of May, 1898, the defendant being about to erect a building on her adjoining lot, agreed with McManus, who then owned the property now held by the plaintiffs, for the conveyance to her of three inches of land east of the line of his building for her party wall. On that day a written instrument was executed which conveyed the three inches to the defendant and it was duly recorded the next day. In this conveyance, which was also executed by the defendant, she covenanted and agreed with McManus, the grantor, that "she would not use or permit to be used the building to be erected by her upon her said property as a saloon and restaurant, or as a place for the sale of ales, beers, wines and liquors for the period of five years from the date of said instrument." The courts below have held that this was a valid restriction upon the use of the defendant's property, made upon an adequate consideration and binding upon her. If the restriction was not removed by the subsequent acts and conduct of the parties that conclusion would not be open to question. *Page 157
The defendant having erected her building applied for a loan thereon, when it was found that there was included in her lot a strip of land about two and a half feet wide as to which there was some defect in regard to the title, and it is found that it became a matter of dispute as to whether the defendant or McManus had the title. The latter refused to settle the dispute by a release or otherwise for some time, and in the end exacted from the defendant $125 for his claim, if any. On the 28th day of September, 1898, McManus and his wife executed and delivered to the defendant a quitclaim deed of her entire lot by metes and bounds, including the two and a half feet in dispute, whereby the grantor conveyed to the defendant the land "with all and singular the hereditaments and appurtenances thereto belonging or in any wise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever, of the said party of the first part, either in law or equity, of, in and to the above bargained premises, with the said hereditaments and appurtenances, to have and to hold the said described lands and premises to the said party of the second part, her heirs and assigns, to the sole and only proper benefit and behoof of the said party of the second part, her heirs and assigns forever." This deed was recorded on the 11th day of November, 1898. On the 7th day of November, 1898, the parties entered into another agreement which had all the effect of a conveyance and was recorded November 17th, 1898, but the only purpose of that instrument was to allow the defendant to extend her building and the west wall thereof about two feet beyond the front of plaintiffs' building or to the line of the street. It enlarged the defendant's rights, and in no respect did it restrict her in the use of her property. The two instruments conveying to the defendant the right to maintain her party wall expressly provided that the rights and covenants therein provided for should run with the land, and although nothing on that subject is mentioned in the quitclaim deed, yet, in the absence of some *Page 158 words of limitation, that form of conveyance carries to the grantee the benefit of all covenants running with the land. (Devlin on Deeds, sec. 849; Jenks v. Quinn, 137 N.Y. 223;Brady v. Spurck, 27 Ill. 478; Morgan v. Clayton, 61 Ill. 35. )
It cannot be doubted that the agreement between the parties which contains the restriction in question created an easement in favor of the plaintiffs and their land and imposed a servitude upon the defendant's property. The right which the plaintiffs thus acquired to restrict the use of the defendant's property is sometimes called a negative easement, which is the right in the owner of the dominant tenement to restrict the owner of the servient tenement in the exercise of general and natural rights of property. (Pitkin v. L.I.R.R. Co., 2 Barb. Ch. 221; Day v. N.Y.C.R.R. Co., 31 Barb. 548; 2 Wn. on Real Prop. [5th ed.] 314.) The servitude thus imposed upon the defendant's property was in every legal sense an incumbrance and an interest in lands which could pass only by deed. (Huyck v. Andrews,113 N.Y. 81.) The sole question in this case is whether this easement in favor of the plaintiffs and servitude upon the defendant could survive the broad terms of the plaintiffs' grant to the defendant, made several months after the servitude was imposed. That grant conveyed to the defendant every possible right, interest or claim that the grantor had or could assert against the premises, in law or equity. The plain legal effect of that deed was to release or annul the restriction in favor of the grantor against the property. The continued existence of the servitude would be inconsistent with the terms of the grant and contradictory of its entire scope and meaning, and so we think that upon the delivery of that deed the easement and servitude ceased to exist. It ceased to exist as to both of the plaintiffs since the deed from McManus to Uihlein was made subsequent to the time when the prior conveyances referred to had taken effect.
The plaintiffs were permitted, against the defendant's objection and exception, to prove the acts and conversation of the parties prior to the delivery of the quitclaim deed to the *Page 159 defendant, in order to show that it was not intended by that conveyance to release or otherwise affect the restriction upon the use of defendant's property contained in the prior agreement in regard to the party wall. The precise question is whether a person who has an interest in the real property of his next neighbor in the nature of an easement, and who conveys absolutely, without any exception or reservation of such easement, can afterwards be permitted, in an action to enforce the right involved in the easement, to show by parol that he intended to retain it, notwithstanding his deed. We think that the testimony was inadmissible. The deed in terms, as we have seen, purported to convey all the right, title and interest of the grantor. The language employed necessarily included any easement that the grantor had or claimed with respect to the premises conveyed, and it was not competent to show by parol evidence that the easement was reserved or excepted. It was a violation of the rule which excludes such evidence to vary, explain or contradict a written instrument that was complete in itself and without ambiguity in its terms. The legal effect of the deed upon the prior easement was to be determined upon the words embodied in the conveyance, and not with reference to what the grantor thought or understood. When words have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning. That deeds or other written instruments cannot be varied, enlarged or restricted by evidence of that character appears from the words of the statute and the general consensus of authority. (Chap. 547, Laws of 1896, sec. 205; Armstrong v. Lake ChamplainGranite Co., 147 N.Y. 495; McCluskey v. Cromwell, 11 N.Y. 601;Green v. Collins, 86 N.Y. 254; Thomas v. Scutt,127 N.Y. 133-138; Case v. Phœnix Bridge Co., 134 N.Y. 78;Englehorn v. Reitlinger, 122 N.Y. 76; House v. Walch,114 N.Y. 418; Devlin on Deeds, sec. 837.) It follows that all parol evidence tending to show that, notwithstanding the clear and comprehensive words of the quitclaim deed, the grantor therein still retained the right to restrict the *Page 160 grantee in the use of the property conveyed should have been excluded. If in consequence of fraud or mutual mistake the deed conveyed more than the parties intended it was subject to reformation in equity, but no facts have been found to justify any relief of that kind. This is an action projected upon the theory that the servitude imposed upon the defendant's property by the party wall agreement remained in force after the plaintiff had conveyed the premises. Moreover there is nothing in the record that tends to show that the defendant ever intended to pay to the plaintiff a considerable sum of money for a deed of all his interest in her property and at the same time leave an outstanding incumbrance in the grantor that affected her title. In the absence of clear proof to the contrary the natural and reasonable construction to be placed upon her acts and conduct would be that her intention was to procure a title clear and absolute, that she could mortgage or convey in the same way as she could if the restriction in question had never been imposed upon her land. This conclusion is not qualified or affected by the last or supplementary writing in regard to the party wall. That paper, as already observed, enlarged the defendant's rights by allowing her to extend her wall to the street line. The very fact that it did not impose any restriction or by any form of words attempt to revive what was extinguished by the deed tends rather to confirm than to weaken the general effect of that conveyance upon the easement as indicated in the principles herein stated.
The judgment should be reversed, and a new trial granted, costs to abide the event.