The action was brought to recover damages which the plaintiff alleges he sustained because of a breach of a covenant of warranty made by Howard. The facts are undisputed. Before the 1st of March, 1887, Howard and Dumond were the owners in fee as tenants in common of lots Hos. 32 and 34 on West Seventy-second street. On the 1st of March, 1887, Dumond conveyed his undivided one-half in lot 32 to Howard, still continuing to be a tenant in common in lot 34. After that conveyance Howard built a house upon 32. The wall between 32 and 34 was a party wall. By mis: take the porch of the house on 32 extended the full width of the party wall instead of one-half the width, thus taking it six inches-over the line of lot 34. Howard then conveyed 32 to his wife.. The situation of affairs then was that Mrs. Howard owned lot 32-with a house on it; the wall between 32 and 34 being a party wall and the porch of her house extending the full width of the party wall instead of one-half, but there was nothing in her deed that, gave her the right to encroach in this way, the description of her lot calling for only twenty-five feet, which would bring her line to the middle of the party wall. Dumond, after the house was built,, conveyed his undivided one-half in 34 to Howard. After that Mrs.. Howard conveyed lot 32 to Boskowitz by the same description by which she received it. Howard joined in the deed, but not in any of its covenants which were made by Mrs. Howard alone. After he became the owner of. 32, Howard and his wife conveyed 34 to *195the plaintiff by a deed with covenants upon which this action is brought. The plaintiff began to build a house' upon it, but discovering that Boskowitz’s porch extended six inches over on his land he cut it off, whereupon Boskowitz brought an action against him. for the trespass. That action never came to trial, but was settled, Farley, the plaintiff here, paying Boskowitz a sum of money to settle the action and Boskowitz consenting that the complaint should be dismissed upon the merits. Farley then brought this action to recover from Howard the money which he had paid to settle that action and procure a dismissal of the complaint against him, and the expenses he was put to because of the claim of Boskowitz.
The first question is of course whether Boskowitz’s claim was well founded, because if it was unfounded the fact that the plaintiff saw fit to pay to get rid of it does not charge Howard with any liability upon his covenant of warranty. There can be no claim that Boskowitz or his grantor ever acquired any right to encroach upon lot 34 by deed. The only way in which it was acquired, if at all, was because of the fact that at some time, when there was a unity of ownership between lots 32 and 34, the house upon 32 was so built as to encroach upon 34, and then it may be that the rule applies that when the owner of two tenements has created an open, notorious and visible easement in favor of one against the other, and he«sells the dominant tenement and retains the servient, the purchaser of the dominant is entitled to insist upon that easement. That rule is practically settled (Lampman v. Milks, 21 N. Y. 505), but I do not think that it applies here, because there was no time when the facts which make it apply exist. The reason of the rule is that a person wrho has an absolute right to do just as he pleases with both lots has seen fit to impose upon one of them a burden for the benefit of the other. If both are his, he can do as he likes with them, and if, for the sake of convenience or of enhancing the value of one, he chooses to give to it an apparent and visible easement over the other, that is his business, and when he sells the dominant lot the purchaser has the right to assume that he buys everything that is apparent and visible, and, therefore, the easement. But. that rule necessarily involves the proposition that the man creating the easement is the absolute owner of both lots, and has, therefore, the. right to put upon *196either any incumbrance he likes.- Quite clearly, the rule fails in this case. Howard was the absolute owner of 32 only. As to 34, he owned but a one-half interest. While he could do what he pleased with his undivided one-half interest in that lot, he could not impose upon Dumond’s one-half interest any burden whatever. Clearly, if they had been joint tenants, there' could be no question of that, because then each one would own the whole of the lot, and would have the right of survivorship if the other died. I cannot see that the fact that they were tenants in common makes any difference. A tenant in common had no right to permit a waste upon the land or do anything which would deprive his cotenant of the full value of his interest, so when Howard put this encroachment upon lot' 34 for the benefit of 32 he stood with reference to 34 as he would if it had been owned absolutely by some one else. It then was a mere encroachment and he could not maintain it, but it would not be a breach of his covenant of warranty.
The evidence shows that putting the porch over the line was a mere mistake; and that it was done without any intention whatever of creating an easement, and, therefore, it is a very serious question whether the effect of it would have been to create an easement in favor of the lot on which the porch was built, even if Howard had been the owner of both pieces of land at the time the building was put up. But that question it is not necessary to consider. It is said, however, that the fact that Howard joined in the deed from his wife to Boskowitz of lot No. 32 had the effect to establish this easement in favor of that lot upon lot Ho. 34, which Howard owned at the time his wife made the conveyance. When Howard joined with his wife in that, conveyance he had no interest whatever in the lot. He granted nothing, nor did he join in any of the covenants of that deed. The utmost effect that the deed could have, if any, so far as he was concerned, was to release any possible interest that it might be said he had in the lot owned by his wife. It certainly had no greater effect than that, and I am utterly unable to conceive how such a deed, having such an effect, could be deemed to transfer any interest in another piece of land which he alone owned and which was not referred to in the grant. There is no claim that Mrs. Howard ever had any right to maintain this encroachment. . Boskowitz obtained only such rights as Mrs. Howard had and nothing else, *197When, therefore, Farley took possession of that portion of his own lot which Boskowitz encroached on he did not violate any rights which Boskowitz had or deprive him of any easement to which he was entitled. As, therefore, Boskowitz had no right to maintain this encroachment, none of the covenants in Howard’s deed to the plaintiff of lot No. 34 were broken,, and Howard incurred no liability towards the plaintiff because of the existence of the porch, and was not liable for any expense the plaintiff was put to in defending his act in removing it.
This conclusion requires, therefore, the affirmance of this judgment, without considering the effect of the judgment which was entered by agreement in the action bi’ought by Boskowitz against Farley. ■ The judgment should be affirmed, with costs.
Hatch, J., concurred • Ingraham and O’Brien, J"J., dissented.