
    Dexter v. Beard.
    
      (Supreme Court, General Term, Fourth Department.
    
    July 20, 1889.)
    1. Deed—Construction—Right of Wat.
    A deed made in 1846 had the following clause: “Also a right of way” between the “south line and a line drawn parallel with the north side” of a certain store; “said lane not to be occupied or built upon by either party. ” The store referred to was built in 1841, and owned by grantor, and bounded the lane, which from its north line to the side of the store was 16 feet wide. There was a hatchway projecting about 5 feet into the lane, leading into the cellar of the store. Held, that the expression “northside of the store” did not mean the north side of the hatchway, and one building where the store stood into the lane 5 feet north of the side of the store to the line of the hatchway will be enjoined.
    2. Covenants—Running with the Land.
    The expression, “ said lane not to be incumbered or built upon by either party, ” was a covenant with both parties, running with the land, and passed to a subsequent grantee without special assignment.
    8. Same—Breach.
    The fact that the predecessors of defendant had violated the covenants by erection of temporary obstructions does not relieve defendant of his obligations under them. 4. Same—Damages—Injunction.
    Whether plaintiff could obtain full damages at law for the obstruction of the right" of way not being made clear at the trial, the injunction was discretionary with the trial court, and will not be disturbed.
    Appeal from special term, Cortland county.
    The action was brought by Margaret Dexter, to restrain Randolph Beard, defendant, from encroaching upon, incumbering, or building upon a certain right of way appurtenant to the plaintiff’s premises in the village of Cortland; and the decision at special term orders an abatement or removal of the encroachment or obstruction placed in the lane. The principal question in the case turns upon the construction of the clause found in a deed bearing date the 5th day of May, 1846, executed by Parker Crosby and wife to William O. Barnard. In that deed a certain village lot was conveyed, and, following the description of the premises thus conveyed, is the following language, viz.: “Also a right of way the whole length of the south line of the above-described lot between the said' south line and a line drawn parallel with the north side of the store now occupied by James Yan Yalen on the grantor’s village lot, this day mortgaged to said grantee, to be used by the grantee in common with the grantor, said lane not to be incumbered or built upon by either party, together with all and singular the rights, members, privileges, hereditaments, and appurtenances whatsoever unto the said above mentioned and described premises in any wise appertaining or belonging. ” It was found at the special term that “the plaintiff and her grantors were owners of the right of way mentioned and described in the complaint. * * * Second. That said right of way is of the width of sixteen feet, and extends in length from Main street, or easterly, to a distance of more than ninety feet; the same being defined in the deeds. Third. That this action was commenced on the 13th day of October, 1884, at which time the defendant had commenced to build, and has since built, on his premises, bounding said right of way on the south, a brick building of the height of four stories, and extending from Main street, in Cortland village, east a distance of ninety feet; and said structure or building extends into said lane and right of way four and four-tenths feet in width from north to south, and ninety feet in length from west to east, and obstructs said right of way over said whole distance to the extent of four and four-tenths feet in width and ninety feet in length, and is an unlawful structure and obstruction to plaintiff’s said right of way, and to that extent is a breach of the covenant contained in the deeds, to the effect that said right of way is ‘to be used by the parties in common, and said lane not to be incumbered or built upon by either party ’ mentioned in the complaint; and both parties derived their titles under or according to the deeds or conveyances specified in the complaint in this action.” The following is the opinion of Judge Merwin, at special term:
    “On and prior to the 5th of May, 1846, Parker Crosby was the owner of certain real estate in Cortland village. At that date he conveyed a portion of it to William O. Barnard, the south line being bounded ‘ by a fence on the north line of the village lot this day mortgaged to the grantee.’ The deed also had the following clause: ‘Also a right of way the whole length of the south line of the above-described lot, between the said south line and a line drawn parallel with the north side of the store now occupied by James Van Valen, on the grantor’s village lot, this day mortgaged to said grantee, to be used by the grantee in common with the grantor; said lane not to be incumbered or built upon by either party.’ This property conveyed to Barnard fronted on the west upon Main street, and the south line extended back from that street about 150 feet. A portion of the premises, fronting on Main street, and running back on the south line from sixty to seventy feet, was in 1866 conveyed by Barnard to Lucien Dexter, who on February 9,1874, conveyed to John D. Schemerhorn, who at same date conveyed to the plaintiff and Lucien Dexter. On February 1, 1882, Barnard conveyed to plaintiff the balance of the property on the south line, together with his rights in the right of way and lane. On the 12th day of August, 1846, Crosby conveyed to Van Valen the property south of Barnard, and referred to in the deed to Barnard, except the right of way between the store and Barnard’s south line, to be used mutually by Barnard and Van Valen, or their heirs or assigns, respectively. This property, through divers intermediate conveyances, came to the defendant on January 23, 1882; reference to the right of way being made to the deed from Crosby to Barnard in 1846. This action was commenced on the 13tli day of October, 1884. The defendant was then commencing to build, and has since built, on his property a large brick building, which on its north side reached to within eleven and six-tenths feet (according to the measurement of defendant’s surveyor) of the building on plaintiff’s property on the road. The plaintiff claims that she is entitled to have there a space of about sixteen feet in width, that being the distance between the plaintiff’s building and the clapboards on the north side of the Van Valen store, as it was in 1846. This store had been erected in 1841 from an old building removed to that site. Under a part of it there was a cellar, in the wall of which, on the north side, about twenty feet from the street, there was an opening from top to bottom about four and one-half feet wide, and a hatchway built out northerly about five feet. This was walled up on three sides, the passage-way into the cellar being left open. ThewalLon the outer or north side was built about to the level of the ground, and at the sides on the east and west the walls were built slanting from the ground up, to about the top of the cellar-wail. There were no stairs in the hatchway. A framework was placed on the top of the three sides, and on this were doors opening each way. Over this hatchway, and projecting about two feet from the upper story of the store, there was a beam covered with a hood, to which a pulley and rope was or might be attached and worked in conveying or raising heavy packages in the hatchway. This hatchway was undoubtedly placed there at the time the store was built on that locality for the purpose of being used in connection with the said store and cellar. The eaves of the store projected on the same side. This hatchway was, in 1866, laid over by Mr. Bradford, the then owner of the store, and a portion of the cellar-wall was also relaid. It is claimed by plaintiff that the north wall of the hatchway was then pushed north abouttwo feet further than it was before. Upon this subject there is a conflict of evidence, but I think the weight of evidence is to the effect that the hatchway was, in 1846, substantially the same size that it was in 1882, when defendant took his deed. Upon the evidence, I should say that there was not enough variation in its size to affect the question in this case. The defendant, in building his present building, did not go beyond the north side or wall of the hatchway. His claim is that he had a right to go so far, and that the plaintiff, holding under the deed from Crosby to Barnard in 1846, had no right south of the line of the north side of the hatchway. The claim of the defendant is, as I understand it, in substance, that the expression in the deed referred to, * the north side of the store,’ means the north side of the hatchway,—the hatchway, for that purpose, being a part of the store; that the right of way there referred to has been by user located north of the north line of the hatchway extended in either direction; that the width between such north line and plaintiff’s south line is reasonably sufficient for the right of way contemplated by the parties, and that should control, as the width is not named in the deed; that the expression or agreement about the lane not being incumbered or built upon is not a matter running with the title, and therefore not available to the plaintiff. On the part of the plaintiff the claim is that the right of way as well as the lane is bounded on the south by a line running along the upright clapboarded north side of the store, extended as far east as the south line of the plaintiff extends; that this space constitutes the lane; that up to 1868 or 1869 this entire space was open and used in its whole width as a way, teams whenever necessary passing over the doors of the hatchway, and such full width being reasonably necessary for the uses contemplated by the parties; that the words in the deed in effect constituted a covenant, running with the land, not to build or incumber; that the defendant took title with notice of this covenant, and that plaintiff can enforce it.
    “The situation at the time of the giving of the deed in 1846 is to be borne in mind. The south line of Barnard was about 150 feet, on which was a fence the entire distance. If the hatchway then projected out five feet, that left a space between it and the fence of ten to eleven feet. The Van Valen store extended back from the street about forty feet. In its rear was an open space where there was apparently, on the south, no monumental boundary for the right of way or lane. The rear part of the store had been and was used by Van Valen largely for receiving and storing butter and other produce. In the operation of this, teams were accustomed to pass in and out of the lane, and I have no doubt that in so doing they sometimes passed each other in the lane along the store, and sometimes drove over, partially, the hatchway doors. This being the situation, did the parties, when they used in the deed the expression * the north side of the store,’ etc., mean the north side of the hatchway? I think not. It is true that in one sense the hatchway was a part of the cellar, and in that way a part of the structure as a whole. Still the side of the store is here referred to as a visible monument,— a basis for a parallel; and that idea should be given to it which whould be intended in its ordinary use. It would not refer to the outer edge of the eaves, (Proprietors v. Hotel Co., 51 Me. 413,) or to the side of the cellar-wall, or of a projection in it, but would refer to the surface having a definite and regular form, and which would be meant in the common use of the term. Coming from the street there was apparently a lane, having on the one side the fence on the south line, and on the other the store. The hatchway was at most an obstruction in the lane. The deed, after describing the space over which the right of way was, used the expression * said lane.’ The word Cane’ had not been used before, so that it may be said that the lane then referred to was the space defined by the previous description; and the fact that there was part of the way then, in that particular locality, a lane with definite boundaries, gives force to the idea that by the use of the word ‘ lane ’ in connection with the other description the parties by the deed meant to extend the visible lane to the full length of the south line of plaintiff’s lot. This would also carry the idea that by the expression • a line drawn parallel,’ etc., the patties meant a line in extension of the north line of thestore. Very evidently the parties supposed they had defined a lane; and not only was a right of way provided for, but there was provision for not building on or incumbering a space apparently additional to what might be necessary for a simple right of way. It seems to me that by the deed the lane on the south side is defined by a line in continuation or extension, not of the north side ot the hatchway, but of the north side of the store proper; thus making a lane there practically of sixteen feet in width. I don’t think it was the intention of the parties to have a lane then only ten to eleven feet wide, especially in view of the use at the time.
    “But it may be said that, as the hatchway was there when the deed was given in 1846, there was no intention to give the right to pass over it, and therefore the right of way was intended to be located north of it; still, with the hatchway as it was, the space over it could to a certain extent be utilized in the use of the right of way without injuring the doors or walls, and the fact that it was there would give point to the agreement that the lane, as distinguished from the right of way, should not be built upon or incumbered. The hatchway as it was did not materially interfere with the use of the way or lane, and was not deemed an incumbrance, but its existence gave occasion to parties’ definitely providing for a clear space. The expression, ‘ said lane not to be incumbered or built upon by either party,’ was, in substance, a covenant with and by both parties. Yo particular form of words was necessary. 1 Add. Cont. § 227; Hallett v. Wylie, 3 Johns. 44; Bull v. Follett, 5 Cow. 170; 2 Wait, Act. & Def. 366; Lovering v. Lovering, 13 N. H. 513. It is a question of intent. Booth v. Mill Co., 74 N. Y. 21. This covenant ran with the land, and passed to a subsequent grantee without any special assignment. Trustees v. Cowen, 4 Paige, 510. It was of such a nature that it must have been designed to accompany the title on either side. The omission of the word 1 assigns ’ would not change the result. Denman v. Prince, 40 Barb. 213.
    “The cases cited by the counsel for the defendant on the point that this was only a personal covenant do not, I think, reach the present case. In Harsha v. Reid, 45 N. Y. 415, the covenantees did not derive their title from the covenantors, but the covenant was an independent and personal contract, in no way connected with the title, (Allen, ,J., pp. 418,419;) and the same may be said of Keppell v. Bailey, 2 Mylne & K. 517. Cole v. Hughes, 54 N. Y. 444, was an action to recover one-half the expense of a party-wall upon a covenant by a grantor of the defendant with the assignor of the plaintiff to pay one-half of the expense of a party-wall when used. Yo title passed when the covenant was made. It was held there was no privity of estate; that the covenant did not run with the land, and did not bind the defendant. This case was followed in Scott v. McMillan, 76 N. Y. 141, which was substantially like it, as was also the case of Hart v. Lyon, 90 N. Y. 663. Dunlop v. Avery, 89 N. Y. 592, was about a covenant in a mortgage to keep the buildings on the premises insured. The case of Insurance Co. v. Insurance Co., 87 N. Y. 400, was more like the present. There the grantee in a deed covenanted for himself and his assigns not to build on a certain portion of the premises conveyed, which were adjacent to the remaining land of the grantor. It was held that a subsequent grantee of the remaining land could enforce the covenant against a subsequent grantee of the covenantor with notice of the covenant. It was also said (page 408) that, if necessary to de•cide it, it would probably be found that there was such a privity of estate that both in respect to the burden and the benefit the covenant adhered to and followed the respective parcels through all the devolutions of the title.
    “But it is claimed by the defendant that this covenant not to build, if it was such a covenant, was broken before the title came to the defendant or to plaintiff, and that any right of action which plaintiff’s predecessor had against defendant’s predecessor did not pass to plaintiff, and that therefore the plaintiff has no remedy on the covenant. Assume the premises, does the conclusion follow? The defendant took title in January, 1882; the plaintiff in February, 1882. Bradford owned the defendant’s property from April, 1865, to April, 1881. In the spring of 1869 Bradford built an open stairway, about four feet wide, out into the lane on the north side of the store nearthe street. This was then, apparently, of a temporary character. It was covered, as I infer, not long before the defendant purchased. In 1873 Bradford built an •office, so called, in the rear of the hatchway, that projected out into the lane about as far as the hatchway,—about four and one-half feet, one witness says,—and it was back about twelve feet. This was not a very permanent structure, and it is shown that Bradford, when it was put up, told the carpenter to fix it up to the building, and mar it (the building) as little as he could, because, if Mr. Barnard made a disturbance about it, he thought he •should have to take it down. Prior to this, in 1871, Bradford claimed to one negotiating to purchase that he had a right to build out as far as the hatchway extended, but that Barnard claimed otherwise. The defendant, after he bought, made the structure more permanent, and it so remained until it was torn down preparatory to the erection of a new building, just prior to the commencement of this suit. Prom 1846 up to at least 1869 the parties •on both sides seem to have recognized the existence of the lane over the entire space between the buildings on either side. A temporary stairway had been built on the north side of the lane on the building now owned by plaintiff, but, after two or three years, and before 1866, this was taken down. In 1856 the predecessor in title of defendant, in giving a lease for part of the Van Valen store, provided that ‘ said parties hereto are to have equal uninterrupted right of way through and use of the lane on the north side of said store.’ There is no doubt that to a certain extent there was a breach of the covenant before the conveyance to plaintiff and to defendant. The cases cited on this subject by defendant’s counsel relate to the consequences upon a breach of the covenant of seisin. Such a covenant is entirely different from the present one. The covenant not to build gives a right in the nature of an easement. It is continuous in its character. It gives the right to have the property in a certain condition, and the benefit of this right is attached to the ownership of the dominant tenement, and the remedy goes with the ownership, not for past damages, but for restoration to the condition that the party is entitled to have. Of such a covenant in regard to a public square it is said in Stuyvesant v. Mayor, etc., 11 Paige, 428,, that ‘ it is a continuing one, upon which actions may be sustained from time to time, as often as the defendants appropriate the property, or suffer it to be appropriated, to any purpose other than that of a public square.’ See, also, Beach v. Crain, 2 N. Y. 86; Dock Co. v. Leavitt, 54 N. Y. 35. It is somewhat like the case of a nuisance. Every continuance of that which was originally a nuisance the law considers a new nuisance, and therefore, though the party complaining cannot in an action on the case recover upon the original cause of action after the expiration of six years, he may for its continuance any time before the right of entry-is barred by adverse possession. Ang. Lim. § 300. It therefore looks to me quite clear that the defendant and the property were not relieved of the burden of this covenant by the fact that defendant’s predecessors did not fully perform the obligations on them. The defendant, by the reference in the deed to him, and from Crosby to Barnard, is chargeable with notice of the covenant, and I have no doubt his predecessor knew of it. Here has been no acquiesence on the part of plaintiff or his grantors that would affect his rights. I see, therefore, no way of avoiding the conclusion that the plaintiff is entitled to have the entire width of the lane kept open and clear from any building or incumbrance, except the hatchway, if that be called an incumbrance; that at the time of the commencement of this action the plaintiff was entitled to an injunction restraining the defendant from placing any of his building on this space; and that, as the defendant has since the commencement of this suit gone on with the erection, the plaintiff is entitled to the decree of the court compelling him to remove so much thereof as encroaches upon the lane. The width of the lane I should, on the evidence, ñx as sixteen feet from the south side of plaintiff’s building.”
    Defendant appeals.
    Argued before Hardin, P. J., and Martin, J.
    
      Duel & Benedict, for appellant. Eggleston <& Smith, for respondent.
   Hardin, P. J.

After an examination of the case presented us by the appeal papers, we have come to the conclusion that the decision made at special term should be sustained. We are satisfied with the opinion delivered by the trial judge at the special term, and therefore we follow it in disposing of the case before ns. In addition to the questions discussed in that opinion, it is now insisted in behalf of the appellant that the covenant not to build upon the lane should not be enforced in equity “where the plaintiff can have full indemnity in damages.” Whether she could obtain full damages by an action or actions at law was not made clear at the trial. How could the depreciation of the plaintiff’s property, and the effect thereto of the encroachments and obstructions in the future, be determined and recovered in an action at law. Uline v. Railroad Co., 101 N. Y. 98, 4 N. E. Rep. 536. Whether an injunction should issue or not in a case like this is a question calling for the discretion of an equity court. The discretion is not an arbitrary one, but is such a judicial discretion as follows well-regulated equity principles and precedents. We think the discretion was exercised in the right direction by the special term, and in accordance with the principles and precedents adopted and approved by the court of last resort. Wheelock v. Noonan, 108 N. Y. 179, 15 N. E. Rep. 67, and cases referred to in the opinion of Finch, J.; Story v. Railroad Co., 90 N. Y. 122; Davis v. Lambertson, 56 Barb. 480; De Witt v. Van Schoyk, 35 Hun, 103, and cases referred to in the opinion of Hardin, P. J., affirmed 110 N. Y. 7, 17 N. E. Rep. 425, and the opinion delivered in this court approved. It is quite apparent that the object of the covenant in respect to the open space was to secure the space from incumbrances and buildings, and therefore “the injunction of a court of equity to enforce the covenant was proper.” Insurance Co. v. Insurance Co., 87 N. Y. 401. The change in the neighborhood and circumstances surrounding the subject of the covenant in the case reported as Trustees v. Thacher, 87 N. Y. 311, were exceptional, and the court in its decision did not intend to disturb the rule stated in the cases to which we have alluded. These views lead us to sustain the decision made at special term. Judgment affirmed, with costs.

Martin, J., concurred. Merwin, J., not sitting.  