
    Elizabeth Griffiths, Resp’t, v. Edward A. Morrison, et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed June 7, 1887.)
    
    Deed—Description in—House extending over adjoining lot.
    In 1863 plaintiff owned 141 and 143 West Forty-ninth street. In 1880 he conveyed 143 to defendant’s grantor by metes and bounds, as being^ twenty-two feet wide on Forty-ninth street, and 100 feet, four and a half inches deep, “with the buildings and improvements thereon, together with the appurtenances. There was a small structure which covered the rear of lot 143, and extended five feet, eight inches, over the line of 141, the west wall of the extension on 141 forming the east wall of the structure on. 143. The buildings were not keyed together, the beams of 143 resting on piers, and the plastering was placed against the outside of. the wall of 141. Held, that the deed conveyed only that part of the building which is on the land described, and did not convey any easement in that portion of the building extending over the adjoining lot.
    Appeal from supreme court, general term, first department.
    
      James J. Thompson, for app’lts; S. Jones, for resp’t.
    
      
       Affirming 36 Hun, 337.
    
   Peckham, J.

The deed from plaintiff to defendant’s grantor conveyed the lot No. 143 by metes and bounds, as being twenty-two feet wide on Forty-ninth street, and the same width in the rear, and 100 feet and four and one fourth inches deep. This description confessedly does not embrace the five feet in question, which are within the area of lot 141, on the east. The defendant, however, claims to have the right in the nature of an easement to retain the possession of this strip, although not embraced in the above description, because the house on the rear of his lot was built and extended these five feet on the lot adjoining it on the east, by the person who was at the time the owner of both lots. For this house thus extended towards the east there never was a separate and exterior eastern wall, but its front and rear walls were simply extended five feet over the line, until they met the western wall of a house built' on that adjoining lot, but not up to the western line of the lot, within the said limit of five feet and some inches. The front and rear walls above mentioned were not keyed into this western exterior wall, and the timbers of the house did not rest in such wall, but were supported by piers. This wall was thus made the east wall of the house, the largest part of which was built on the lot now owned by defendant, and the plastering was placed upon or directly against it. The house had a hallway through its center, with rooms on each side, and the eastern rooms, of course, had this wall for their eastern boundary. Under these circumstances the plaintiff sold to defendant’s grantor a piece of land described as above, “with the buildings and improvements thereon,” “together with all and singular the tenements, hereditaments and appurtenances thereto belonging. ”

Unless the defendant has the right to retain the posses • sion of the five feet, and the right to use the exterior wall above described as a wall to his building so long as the wall shall endure, the plaintiff has established her right to the premises, and the judgment awarding her possession thereof must be affirmed. The defendant claims to have established his right under the language of the deed last above quoted. The description in the deed of the amount of the land conveyed is minute and definite, even to a half inch, and the deed conveys “the buddings and improvements thereon.” Does this language include the right to retain possession of the five feet in controversy, while that western extension wall endures, and to use such wall as the eastern extension wall of the defendants’ house? It is the building and improvements on the land which is most accurately and minutely described, that are conveyed. There is no suggestion of mistake of measurement in the amount of land intended to be conveyed, and yet a piece of land five feet in addition to that which was actually conveyed, and out of a total of only twenty-two feet, is thus called for to furnish this easement to defendant’s premises. We think that the language conveys only that part of the building which is on the land described, and that no right such as is claimed by the defendant exists upon or in relation to the land not conveyed, and which belongs to plaintiff. Such, we think, is the clear intention to be deduced from the language used, and from the situation of the parties. The defendant can easily build up a wall, on the easterly side of his premises, which will then keep the building thereon in good condition, although the effect, of course, will be to somewhat diminish the size of the whole building as to width. The defendant will still have all that was conveyed to his grantor, viz., the building and improvements which were on the land actually conveyed.

But the defendant claims that his right can be founded upon the other clause of the deed which conveys the land thus specifically described, “together with all and singular the tenements, hereditaments, and appurtenances thereto belonging, or in anywise appertaining.” It is claimed that this right to use the western extension wall' as long as it endures, and also the space for the front and rear walls, is an easement which is appurtenant to the grant of the twenty-two feet of land, “ with the building and improvements thereon,” which building defendant says cannot exist as a building unless the front and rear walls are permitted to stand, and they cannot stand unless permitted to occupy the land on which they stand. It must be remembered that the parties have respectively granted and received all of the land that was intended. There has been no mistake made about the quantity thereof. The grantee received, and the grantor conveyed, only twenty-two feet in width; each, of course, knowing that five feet of the width of the building ran over and upon land not conveyed. If there had been any thought of conveying that portion of the house which stood on land not conveyed, or of erecting any easement upon the land not conveyed in the nature of a right of support for the walls of the building, I think language would have been used which would have made it plain that such was the intention. By the word “appurtenances,” incorporeal easements or rights or • privileges will alone pass, and of these only such as are necessary to the proper enjoyment of the estate granted. Ogden v. Jennings, 62 N. Y., 526.

I think the estate granted was a lot of land twenty-two feet wide, and such building as was on that lot, but the estate did not extend to any portion of that building which was outside of and beyond such lot. It was not necessary, in order to enjoy the estate granted, that there should exist an' easement in the shape of an appurtenance to such estate, which was not directly necessary to its proper enjoyment, and was no more than a mere convenience, and in effect simply an enlargement of the grant. By building the extension wall on his own land, the defendant can have the full enjoyment of everything that has been conveyed to him. He cites as the main authority for his contention the case of Rogers v. Sinsheimer (50 N. Y., 646). But the cases are clearly distinguishable. In the Rogers Case the original owner had built two houses on two lots, with a party-wall eight inches thick between them, which served as a support, for the beams of each house. On the same day he sold the houses by two deed to two different parties, conveying the easterly lot to A., the plaintiff’s grantor, and the ‘westerly lot to B., the defendant’s grantor; the deed to the latter by a description which located the division line so as to throw the party-wall and two inches of land on the westerly side thereof within the plaintiff’s lot. The plaintiff recovered a judgment, which was reversed at general term, and such reversal affirmed here. It was placed on the ground that as it was a party-wall which, at the time of the conveyance, served as a support for the beams of the house erected on the lot then belonging to defendant, the premises were obviously charged with the servitude of having the beams of the house rest in the wall, and the wall remain as an exterior wall for defendant’s house so long as the building should endure. Thus we have the fact of a party-wall, and an actual existing support therein for the beams of each, house, and the right to the use of it as an exterior wall.

Again, there was a space of but two inches beyond the party-wall which plaintiff claimed, and that space was so short as to prevent the idea being formed that there was an intention by such conveyance to terminate the character of the wall, and the right of defendant to rest his beams, upon it. Such right of support existing, carried with it, of' course, the right to occupy this space of two inches between the easterly boundary of defendant’s lot and the wall, with the timbers which were to be supported in the wall. In the case at bar there was no party-wall, and no support, and no right of support, for the beams of defendant’s house. The exterior wall of an existing house had simply been utilized as being partition enough between the houses, and no part of it was used for a support of any of the timbers of the house in question, and this wall was five feet from the line of the premises which were actually conveyed to the defendant.

The character of the easement claimed by the defendant, in effect does not differ from the claim of the fee to the five feet; for the right to occupy the space with the front and rear walls, and to have the western wall of the other building serve as the eastern exterior wall of defendant, requires in its exercise the actual and exclusive possession of that amount of land, although it was never conveyed to defendant. There is no intention to make a conveyance of any such right expressed in the deed, and there is nothing in the Rogers Case which compels or authorizes us to imply such an intention. We have looked at the other cases cited by defendant’s counsel, but they plainly have no application.

What has been said in regard to the claim of defendant as to the five feet applies with stronger force to the alleged easement for the maintenance of the privy, hydrant, etc. This alleged claim is plainly untenable, as not being in any sense an appurtenant to the land conveyed, not necessary to its enjoyment, and scarcely even more convenient.

The judgment should be affirmed, with costs.

All concur.  