Olin v. Kingsbury

Scott, J. (dissenting):

The defendant appeals from a judgment in equity which, in effect, decrees that two adjoining properties owned by different owners shall continue to be maintained and used, as they have been for many years, as a single building.

The facts are peculiar and so far as we are aware are not exactly paralleled by any reported case. Taken together the properties constitute a plot on the northwest corner of Fifteenth street and Irving place in the city of New York, *358sixty-two feet six inches in width on Irving place and eighty feet in depth. The corner lot, which is twenty-two feet in width on Irving place, and was formerly known by the street number as No. 15 Irving place, is owned by plaintiffs as trustees. The remainder of the property, which is forty feet and six inches in width on Irving place, and was formerly known by the street numbers as Nos. 17 and 19 Irving place, belongs to the defendant as trustee.

Prior to the year 1870 there stood upon the property three private dwelling houses, each of which was complete in itself and had a separate entrance on Irving place. No. 15, on the corner, was then owned by Edward J. Lynch; No. 17 by Samuel Frost, and No. 19 by Mattie G. Brown. The latter property was purchased in 1882 by Samuel Frost, who thereafter, and until the time of his death, owned both Nos. 17 and 19.

In the year 1870 Edward J. Lynch leased his house and lot to Joseph Wehrle for the term of ten years, with the privilege of ten years’ renewal. In the same year Samuel Frost leased No. 17 to the same Joseph Wehrle for the term of ten years, with privilege of renewal, the lease containing a stipulation that the property should be used for no “ business or purpose which shall be more injurious to the said premises than the general hotel business.” In the year 1872 Mattie G. Brown leased No. 19 to the same Joseph Wehrle for the term of eight years, with the privilege of renewal for ten years. This lease contained a stipulation identical with that in the above-mentioned lease from Samuel Frost as to the use of the property for no business or purpose more injurious than the hotel business.

Joseph Wehrle, having thus become the tenant for a term of years of all three properties, proceeded to make extensive and radical alterations therein with the purpose arid effect of combining them into a single building which he used during the continuance of his term as an hotel under the name of the Hotel Belvidere. These alterations may be briefly summarized as follows: A mansard roof was constructed over all of the buildings. A basement and four-story addition with mansard roof was built over the rear of No. 15 (the corner lot), so that the hotel building covered and now covers the entire lot. This extension served as a kitchen in the *359basement, and a dining-room on the main floor, the upper floors being subdivided by lath and plaster partitions.' The middle house (No. 17) was used for the main entrance to the hotel. The front door and hallway were done away with and the front steps removed. The hotel entrance was so constructed as to extend across the whole front of No. 17, such entrance consisting of a door with side windows on which the names successively used for the hotel were painted.

The interior was arranged for the use of the whole property as one hotel. The main floor of No. 17 served for the entrance hall, and in that building were and are located the heating plant for the whole property; the elevator giving access (through openings cut in the walls) to all parts of the hotel; the ranges, boilers and kitchen flue as well as the electric meter. The drainage system for the whole property passes under No. 15 to Fifteenth street, and in the cellar of that portion of the property is a water meter which supplies the pump and hot water tank- in No. 19 which controls the water supply to all parts of the whole building.

This was the condition of the property when Joseph Wehrle’s lease expired. He did not exercise the privilege to renew. From the date of the expiration of his leases down to now the property has been in appearance and in fact a single building used for an hotel; the several owners, although apparently entering into no formal agreement between themselves as to leasing to the same person, always contrived so to lease their properties that they always had the same tenant, and this tenant has always used the property as a single, entire building under the name Hotel America, or Hotel du Nord.

It was abundantly shown by the evidence that if the property continued to be used in the future as in the past, as a single building, for hotel or some other purpose, it would have a reasonably adequate, rental value, but if broken up into separate and disconnected properties, the buildings, and especially that portion consisting of what was formerly No. 15, belonging to plaintiffs, would be wholly valueless for any usable purpose, since it would be economically impossible to restore it to its former condition as a dwelling house with any hope of realizing an adequate and reasonable return upon the cost.

*360The defendant now contemplates selling so much of the property as was formerly known as Nos. 17 and 19 Irving place, and to that end proposes to erect a dividing wall between the corner lot (No. 15) and said No. 17 so as to cut off and wall up all the openings in the present walls between said parts of said hotel building, and to cut off and separate said corner building (No. 15) from the use of the main entrance and hallway, and the enjoyment of heat, gas, electric light and water furnished by the apparatus and appliances situated in Nos. 17 and 19, as the same have for many years been used and enjoyed by the common tenant of the whole property for the benefit of the corner lot. In short, it is the defendant’s purpose to absolutely segregate that portion of the property owned by him from that portion owned by the plaintiffs, in such a manner as to render impossible the continued use of the whole property as a single building. The judgment appealed from enjoins this segregation. It may be said at the outset that neither landlord acquired any prescriptive rights against the others in consequence of the acts of Wehrle, who was the common tenant, holding under separate leases, for a tenant cannot take by adverse holding or by prescription against his landlord (Jones v. Reilly, 174 N. Y. 97, 107), nor can he transmit any such right to another.

The rights of the respective owners, as against each other, arose, if at all, when the property came back into their hands upon the expiration of Wehrle’s leases in 1881, in the condition in which he had put it, and are to be established, if at all, by' their dealings with the property during the period, exceeding thirty years, which has since elapsed. Of course the fact that the buildings had been transformed in use and appearance into one was obvious and patent as was the fact that the character of the property had been radically altered so that it was then no longer adapted to use as a block of single dwelling houses, and was adapted only for some use as a single building. But the acquiescence of the several owners to the use of the reconstructed building as a unit for the purposes of an hotel need not be deduced only from their knowledge of the use to which it was in fact put, but is expressly shown by many leases and consents to assignments *361of leases, executed by one owner after another in which the use of the several properties as parts of the hotel is expressly recognized and stipulated for.

It may fairly be said from the evidence and findings that the owners of what were originally three houses finding their properties transformed into a single house under one roof and so arranged internally that every part of that house was dependent upon every other part, accepted and acquiesced in this reconstruction and interdependence for thirty-five years or more, all that time reaping an advantage from the existing arrangement. The question we have to consider is whether one owner, after having for so long a period recognized and profited by the mutual advantages flowing from the use of the property as a single building, may at will destroy the existing arrangement and segregate the properties to the detriment of the other owner. That either owner could have insisted upon physically segregating the properties when Wehrle’s leases expired, or within twenty years thereafter, I do not doubt, but I am disposed to think that the recognized and accepted condition and use of the property had after twenty years established certain mutual rights as between the owners of the several parcels which neither is at liberty to disregard to the detriment of the other. From the history of the property as above detailed we should presume a grant or agreement between the owners that, so long as the building stood, it should continue to be used as a single building, each part enjoying the benefit to be derived from the mutual arrangement of all the parts.

It would serve no useful purpose to discuss at length the manner in which one owner may acquire by prescription, or presumed grant, the right to use his neighbor’s land for the benefit of his own tenement. That such right may be acquired by long-continued user by the owner of the dominant tenement, coupled with knowledge and acquiescence by the owner of the servient, is settled. The books are full of cases in which this principle has been applied. Sometimes the right is exclusively for the benefit of the dominant tenement, and the burden borne solely by the servient. Such are the common cases of rights of way and rights of drainage. Sometimes the rights are mutual apd reciprocal, each tenement being burdened *362for the benefit of the other, and each being benefited at the expense of the other. Such in general are cases of party walls. , Nor are cases unknown to the law in which separate owners hold different parts of the same house, as for instance different stories. In such cases it has long been recognized law that neither owner may do anything within his own part or story which shall impair the safety or enjoyment of their parts or stories by the other owners. (Humphries v. Brogden, 12 Q. B. 739; and see Washb. Ease. & Serv. 480, 481.) According to this rule if the parties to the present action had owned different floors or stories of the whole building, instead of owning different parts thereof as they doy it would seem that neither could deal with his own part as to cut off that part owned by the" other , party and thus render it unusable and valueless. An interesting application of this rule arose in New Hampshire in 1809. D. and M. each owned one-half of a dwelling house. It had been built altogether; two rooms on a floor, chimney in the middle, entry on the front side, from which led stairs to both chambers and entrances into both rooms. The division was by an imaginary line running through the middle of the front door, entry, stairs, chimney, etc. The house was old and needed repairing. M.’s part was not worth repairing, but D.’s part was tenantable. The fire-wards upon view of M.’s part were of opinion that it was dangerous for want of repairs and ordered it to be repaired or otherwise rendered not dangerous on account of fire. M. elected to take down his part to the line. He left the materials of the entry for D.; he sawed through the plate girds, stairs, etc., but did not take down the chimney. All those things he did carefully, doing as little damage as possible to D.’s part of the house. D. sued for damages for trespass. It was held that he could recover. Smith, Ch. J. (with whom all the other judges concurred), said: I am inclined to. think that each of the parties were interested in the entry, stairs, chimney, etc., and that neither could destroy these without the consent of the other; that each of these owners was under an obligation to the other to keep his part in repair, at least so far that the tenement of the other should suffer no injury from want of such repair. It may be likened to the case of a party wall which neither owner can remove. - * * *

*363From the nature of the thing, these parties must be considered as interested, as it were, in common, in the entry, chimney, stairs, etc.; and neither could destroy that in which the other had a valuable interest.

“ Doe had an easement, or right of enjoyment, of that part of the entry which was beyond the middle line, which does not depend on the courtesy of the defendant; it is a matter of right. It is for the interest of both parties that this should be the case. It may be said the owner may do what he will with his own * * *. But the truth is, it is not his own in an absolute, exclusive sense, because Doe has a right to the enjoyment of it.” (Doe v. Morrell, Smith [N. H.], 255.)

In Thompson v. Miner (30 Iowa, 386) is presented a case similar in some aspects to the present in that a building was erected to cover three lots in such manner that it could be most adequately used together as a single building. The lots upon which the building stood passed into several ownership, but it was held that one owner could not cut off from that portion of the building belonging to the other owners the access provided by the stairs and passageways which were constructed on his part of the building. To the same effect is Kane v. Templin (158 Iowa, 24) where halves of a single building had been granted to different devisees. It was held that an easement existed for the use of the halls and stairways which stood in one half, for the benefit of the other half.

In many other cases the principle applied in the foregoing has been recognized and applied. (John Hancock Mutual Life Ins. Co. v. Patterson, 103 Ind. 582; Foote v. Yarlott, 238 Ill. 54; Lead City Miners’ Union v. Moyer, 235 Fed. Rep. 376.) It is true that the facts in the cases cited are not identical with the facts in the case at bar and that in most of them the easements were created while the properties benefited and burdened were held in the same ownership where the use, which ripened into an easement, had its origin. But this does not affect the principle applicable to the facts we now have to consider. The only difference between easements arising upon the severance of an estate theretofore held in unity of ownership, and easements affecting properties held separately and never united in ownership, is as to the manner in which the ease*364ment is created. In "theory all easements rest on grant, sometimes, although rarely, actually embodied in a deed, but much more frequently implied or presumed. (Washb. Ease. & Serv.*32; Nichols v. Luce, 41 Mass. [24 Pick.] 102.) If an owner so builds upon or disposes of his property that one part is openly and continuously burdened with a use in favor of another part, and then severs the property and sells that part in favor of which the use has been established, retaining that upon which the burden rests, a conveyance. of the right to continue the use will impliedly be found in the conveyance of the part granted, and the grantor will be estopped to deny that he intended to include in his conveyance the right to continue to enjoy the use. So when the owner of one parcel acquiesces, for twenty years dr more, in the open, notorious and continuous use of his property for the benefit of the property of his neighbor it will be conclusively presumed that at some time a grant of the right had been made, and a like presumption will arise when two owners of adjoining parcels have for the requisite period of time enjoyed an,d exercised mutual and reciprocal beneficial uses over the property of each other.

While the law reports in this State are replete with cases dealing with the creation and enforcement of easements I have been able to find but one which resembles in its peculiar facts the one we are now considering. In that case it appeared that Bartholomew Karalus and his wife Katarzyna purchased a corner lot in the city of Buffalo which they owned jointly. Upon this lot they erected a building which they occupied as a saloon, grocery and dwelling house. Subsequently the husband individually acquired title to an adjacent lot. The two lots were inclosed with a fence and used and occupied as one tract, and the husband erected upon the lot acquired by himself individually an addition to the building erected on the corner lot. Connected with this addition were a shed, outhouses and a large woodshed. These buildings were all used together by the husband and wife, until the death of the former, twenty-five years after the properties had first been united in use. Later the wife died bequeathing her property to the plaintiffs. The husband having died intestate and without descendants, his heirs, after the wife’s death, partitioned his *365property. The defendants in the action bought the lot which the husband had acquired individually and had used in conjunction with the corner lot. The plaintiffs sought to impress an easement in this second parcel for its use in connection with the corner lot, which as it was claimed were inseparably connected, and all had been used together continuously and notoriously for nearly thirty years. The Appellate Division in the Fourth Department sustained the plaintiffs’ contention, speaking through Mr. Justice Spring, as follows: “ I think the long occupancy in connection with the first lot, openly, notoriously and continuously, ripened by adverse user into a definite easement, and that the presumption of a grant is conclusive therefrom. (Colburn v. Marsh, 68 Hun, 269; affd., on opinion below, 144 N. Y. 657; Hey v. Collman, 78 App. Div. 584; affd., 180 N. Y. 560; Fritz v. Tompkins, 168 id. 524.)

“ The rule is stated in this language in Winne v. Winne (95 App. Div. 48; affd., 184 N. Y. 584) at page 50: ‘Where the owner of the land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon the severance of the ownership the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance.’ * * *

“ If the situation were presented between the husband and the wife, he would at this late day be estopped to repudiate his affirmative acts in affixing these buildings to the store and dwelling. * * *

“ The part of the building, for the various additions are so attached as to constitute one building, cannot now be severed without materially diminishing the value of the first tract purchased. * * * The substantial character of the part added, its necessity for the beneficial use of the first property purchased and the manner in which it was joined to the first building denote that these two people intended that the entire building should remain as erected as an appurtenant to the first lot.” (Fronckowiak v. Platek, 152 App. Div. 301.)

It may be noted in regard to the case last quoted that although there had been a partial unity of ownership, the court preferred to rest its decision upon the long-continued and notorious use.

*366Applying the foregoing rules and illustration of the application in previous cases to the case at bar, I am of opinion that the plaintiffs are entitled to the protection which they seek and which has been awarded to them by the judgment appealed from. The separate owners not only adapted their buildings to a common use, or, what amounts to the samé thing, adopted and acquiesced in the adaptation thereof made by their common tenant, but for more than thirty years have continued its use as-a single building and have, more than once, stipulated expressly that their separate properties shall be used as part of an hotel which occupied the entire property. Out of this long acquiescence has grown, as I consider, a conclusive presumption that the . use of the building as a whole, and the interdependence of each part upon every other part had origin in mutual and reciprocal grants between the owners. Neither owner can now, as I apprehend, lawfully destroy the mutual and reciprocal easements established by long acquiescence, to the detriment and damage of his neighbor’s property. If it be said that the continuance of this state of affairs threatens to make the management of the property difficult, the answer is that the owners for some forty years have managed to use the property profitably in the precise condition in which the judgment appealed from would leave it.

The appellant calls our attention to an apparent contradiction between the 33d finding of fact to the effect that there was an agreement between the owners that the building in question should be used as an hotel, and the 37th finding to the effect that the respective owners had at no time entered into any agreement with respect to the joint or combined use of the properties. The contradiction is more apparent than real. In the 33d finding the court evidently referred to the presumed agreement resulting from long-continued use and acquiescence. In the 37th finding the court evidently meant to find that no formal agreement had been entered into between the owners. It should be amended to as to express that .meaning clearly.

The judgment should be affirmed, with costs.

Judgment reversed, with costs, and judgment ordered for defendant, with costs. Order to be settled on notice.