
    Brondage vs. Warner.
    L. conveyed to B., his heirs, &c. by deed, the right of building the east wall of his house on the top of the west wall of L.’s building, thus making the whole a party wall between the two buildings; held, although the deed conveyed a mere ease, ment, that L. or his assigns could not recover in ejectment of B. or those claiming under him, the land occupied by the wall. And this, though all of the building of L., except the west wall, had been burnt down before suit commenced.
    An easement may be granted in fee, and the grantee cannot be disturbed by ejectment, in his enjoyment of it.
    In this case, if the grant were not in fee, yet it carried a right to B. and his heirs to the wall so long as it stands and answers his purpose.
    Ejectment, tried at the Tompkins circuit, in February, 1840, before Monell, 0. Judge. The action was brought to recover a piece of ground covered by the west wall of the plaintiff’s brick building, in the village of Ithaca.
    The plaintiff gave in evidence a deed in fee, from Joseph Benjamin to William Lesslie, dated March 27th, 1819, for the lot on which the building called the Lesslie store, stood, including the west wall; and thence deduced a regular title in fee to Hall & Ellis, who, on the 17th April, 1838, conveyed to the plaintiff, by a deed duly recorded on the 21st April, 1838. Having shown that the deeds comprehended the wall, and given evidence tending to show that the defendant was in possession when the suit was brought, (1839,) the plaintiff rested.
    The defendant claimed under Benjamin, who obtained from Lesslie, by deed, the privilege of building a wall for the third story of his (Benjamin’s) store on the top of the west wall of Lesslie’s store. This deed was dated July 28th, 1821, and granted, bargained and sold to Benjamin, his heirs, &c. the right of building the east wall of the house he was then erecting, &c. on the top of the west wall of Lesslie’s building, to the height of three stories, and of occupying the west end of Lesslie’s building as the east end of his, Benjamin’s. This deed was not shown to have been recorded; but it was proved that Benjamin and those claiming under him had been in possession of the wall as erected by him under the grant. Lesslie and those claiming under him had occupied the Lesslie store till 1834 or 1835, when it was burnt down, excepting the wall in question, to and on which Benjamin or those claiming under him still continued to hold. The plaintiff had erected another building on the lot adjoining the wall.
    The judge charged the jury that Benjamin, by his deed from Lesslie, took a mere easement; and submitted to the jury, the question whether the defendant was in possession—telling them that if he was, the plaintiff was entitled to recover. A verdict was rendered for the plaintiff. The defendant now moved for a new trial, upon a case.
    
      C.'B. Drake, for defendant.
    
      Love 4* Freer, for plaintiff.
   By the Court,

Cowen, J.

The question whether the deed to the plaintiff was void in respect to the wall, by reason of adverse possession in Benjamin, or any one claiming under him, was not raised at the trial, and therefore cannot now be noticed. Had it been raised, the objection might have been obviated.

Nor do I see that the question of priority, by reason of the plaintiff’s deed being first recorded, was noticed.

The question whether the defendant was in possession at the time of suit brought, was, I think, properly submitted to the jury, whose finding on "that head cannot be disturbed. There was some evidence, and enough to warrant their finding as they have done.

The whole case comes down to the legal effect of the deed of 1821, which, as the judge decided, conveyed a mere easement; and therefore he directed the jury to find for the plaintiff.

In this it seems to me he erred. Clearly the right to recover does not follow from the deed conveying a mere easement, for that may be granted in fee; nor can the grantee be disturbed by ejectment in his enjoyment of it.

The deed granted to Benjamin and his heirs the right of building on and occupying to the plaintiff’s west wall. Benjamin accordingly did so; and he or those claiming in his right, have continued their occupancy to this day. It is supposed by the plaintiff’s counsel that the burning down of the Lesslie store put an end to the right. On what principle such a consequence is to follow, I am unable to see. The wall in question has not fallen down though the other walls of the store have. These the defendant does not want, nor does Benjamin; but only the party wall, or the right to that wall so far as it was granted. If the grant were not in fee simple, yet clearly it carried a right to Benjamin and his heirs, so long as the wall stands and answers his purpose. (2 Black. Com. 109. Co. Lilt. 27, a.)

There must be a new trial, the costs to abide the event.

New trial granted.  