— Much of the law discussed upon this motion has, in my judgment, no bearing upon the question which arises in the case. It is settled in this state that no right to the use of light and air in a building overlooking the land of another is acquired by use, enjoyment or pre-emption. It can pass only by express grant or covenant, and will not pass by implication of a grant (2 Washburn on Real Property, 319 [3d ed.], sec. 39), unless it is necessary to the enjoyment, and was clearly intended from the circumstances existing at the time when the conveyance was made (Voorhees agt. Burchard, 55 N. Y., 98; Comstock agt. Johnson, 46 id., 615; Huttermeyer agt. Albro, 18 id., 48; Nicholas agt. Chamberlain, W. Lac., 121; New Ipswith Factory agt. Batchelder, 3 N. H., 190; United States agt. Appleton, 1 Sumn., 492).
The two lots in this case originally belonged to the one owner; the lot on the westerly side of Lexington avenue extending - back eighty feet so as to meet the rear of the lot on the northerly side of Fiftieth street, along which lot the rear of the Lexington street lot extended for twenty feet.
On the Fiftieth street lot the then owner erected a building covering the whole of that lot as it now exists. In the rear of which lot he placed windows for light and air overlooking the rear of the Lexington street lot, and on the Lexington *86street lot he erected a building sixty feet-deep, for which the-rear of the lot for the remaining twenty feet served as a yard, which yard was overlooked by the windows of the building on the Fiftieth street lot, and in the yard he erected a fire-escape for the joint use of the two buildings.
The two lots were severed by the foreclosure of mortgages given by the owner and the sale of the lots, as separate lots, under which sales the plaintiff has become the owner of the Fiftieth street lot, and the defendant of the Lexington avenue lot. The defendant claiming the right to the exclusive use of the yard, has erected a wooden fence, by which he has cut the plaintiff off from the use and enjoyment of the windows in the rear of the building on the Fiftieth street lot, and also from' the use of the fire-escape.
The question in the case is, whether the plaintiff, at the severance of the two lots, had a right to the light and air from the windows in the' rear of his building, and to the use of the fire-escape, of which -the defendant could not deprive him, and, it appears to me, that the case comes clearly within the rules illustrated by Selden, J., in Lampman agt. Mills (21 N. Y., 511). “ If,” says Judge Selden, “ both proprietors obtained their title from a common source, the same grantor having conveyed the tenement with the windows to one and the ground overlooked to another, the windows cannot be obstructed, and the reason is that the relative qualities of the two tenements must be considered as fixed at the time of their severance; each retains as between it and the other the properties then visibly attached to it, and neither party has the right afterwards to change them,” for which he relies on Cox agt. Matthews (Ventris, 237), a case which fully bears out what he states.
The rule of the common law is, says Judge Selden, that where the owner of two tenements sells one of them, the purchaser takes the tenement sold with all the benefits and burdens which appear at the time of the sale to belong to it and the property which the vendor retains, which, he adds, is *87one of the recognized modes by which an easement or servitude is created. If the burden, he remarks, is open and visible, the purchaser takes the property with the servitude upon it.
The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has the right by altering arrangements then openly existing to change materially the relative value of the respective parts.
In the subsequent case of Butterworth agt. Crawford (46 N. Y., 349), the judgment of this court was reversed solely upon the ground that the servitude was not open and visible.
The rule above stated was not questioned ; but the decision was put upon the ground that there must be some mark or sign which would indicate the existence of the servitude to one reasonably familiar with the subject. Upon an inspection of the premises for this, the present case, the right which was claimed was open and visible, as it was the windows in the rear of the house on the Fiftieth street lot, and the fire-escape which had been built for the joint use of both houses.
In Robins agt. Barnes (Hob., 131), the two adjoining houses were so built, the one overhung a portion of the other, and, although this overhanging was originally wrongful, yet as both houses afterwards became the property of one person, and through him were divided, it was held that -they were taken as they were at the time of the conveyance by which they were severed, and that the- owner of the house which overhung was entitled, upon taking it down, to rebuild the • new house so as to overhang in the same manner; and it has been recognized in several cases, that if one owning a house with windows looking out upon adjoining land of his own, sell such house, he cannot afterwards build upon the adjoining land, so as to stop or obstruct the light of such windows (Story agt. Odin, 12 Mass., 157; Grant agt. Chase, 17 id., 443; Cherry agt. Klein, 11 Md., 24; 2 Washburn on Real Properly, p. 318 [3d ed.], D. 36, and note).
It can make no difference in the application of .this rule whether the severance took place by a direct grant from the *88owner, or arose by the transfer of his interest upon foreclosure sale, for the reason of the rule applies as much in the one case as in' the other. The question is, what did each party get on the severance ? Did the purchaser of the Lexington avenue lot, who bought, as would appear from the pleadings, after , the plaintiffs purchased, take that lot subject to the plaintiff’s right to the joint use of the fire-escape, and to the use of the windows in the rear of the building for light and air ?
In my judgment he did, and I shall, therefore, deny the motion to dissolve the injunction.