
    MICHAEL L. DOYLE, et al., Plaintiffs and Appellants, v. SAMUEL LORD, et al., Defendants and Respondents.
    LESSOR AND LESSEE.
    I. Windows—light and alb.
    
      a. Bight of lessee and lessor in respect of.
    
    1. Where a building having windows overlooking vacant prem ises owned by the lessor is demised, “ with the appurtenances,” by a lease containing only a covenant for quiet enjoyment, the lessee acquires no right as against the lessor, or those claiming under him, to have the windows remain unobstructed for the passage of light and air, or any other purpose.
    1. Such a right does not pass under the clause, “ with the appurtenances. ’ ’
    
    1. This, although the vacant premises are situate in the rear of the building and hare erected on them a primy (constituting what is ordinarily termed a yard), it appearing that the lessee had no right to the use of the privy, nor of access thereto.
    1. Consequently the lessor, or those claiming under him, are at liberty to place an erection on such vacant premises, although the effect is to entirely obstruct the windows of the demised house which overlooks the vacant premises,
    i. What facts do not affect these rights.
    
    These rights are not affected by the facts :
    That the lessor had covenanted to put iron bars in the windows; had for a valuable consideration granted to an adjoining owner the privilege to put windows in his building looking into the rear premises, and had covenanted not to obstruct such windows; that the lessee was restricted by the demise to him, to using the demised premises for a particular business, for which business the light from the windows was highly desirable and beneficial, the sales largely depending on it; that the lessor had subsequently leased the vacant premises to the party who was putting up the'erection complained of, making such subsequent lease subject to the prior one, and providing in the subsequent lease that the lessee therein should not interfere "with the lessee in the prior lease, in the occupation of the premises thereby demised.
    .ANCIENT LIGHTS.
    I. English doctrine of, does not obtain in the State of New York.
    Before Monell, Ch. J., Curtis, and Speir, JJ.
    
      Decided June 7, 1875.
    Appeal from a judgment.
    In July, 1870, Ann Gillett (the owner) leased to the plaintiff “all that store on the first floor, known as Ho. 85 Forsyth street, in the city of Hew York, to be occupied by them as a dry goods store, with the appurtenances, for the term of five years from May 1, 1871.” The lease contains a covenant of peaceable and quiet enjoyment.
    The width of the store was twenty-five feet, and its depth fifty-one feet. There was an open space in the Tear nineteen feet deep and of the width of the store. Under some parol agreement between the lessor and the plaintiffs, the lessor, before executing the lease caused a door and part of the windows in the rear wall of the store, and opening or looking upon the aforesaid space, to be closed, except leaving a space of about two feet in the upper part of the windows, which the plaintiffs barred with iron bars, leaving no means of access from the store to the space in the rear; but the upper part of the windows furnished light to the -rear of the store.
    The open space in the rear of the store was part of a lot or space of nineteen feet wide and fifty feet deep, extending across the rear of the plaintiff’s lot and the lot adjoining on Forsyth street, and was also owned by Mrs. Gillett.
    On May 1, 1874, Mrs. Gillett leased for a term of ten years the whole of the lot, nineteen feet wide and fifty feet deep, above mentioned, to the defendants. This lease covers the open space in the rear of the plaintiffs store.
    It is alleged that the defendants are about to erect upon said lot a building covering nearly the whole thereof, which will so obstruct the light and exclude the air from the rear of the plaintiffs store, as to be an irreparable injury.
    . The action was tried by the court without a jury. There was some evidence on the part of the plaintiffs, which it was claimed established some right to the use of, and a corresponding right of access to, a privy in the space in the rear of the store. But the defendants fully negatived any such right.
    It was also proved that in 1873 the plaintiffs, for the purpose of obtaining a greater amount of light, had enlarged the rear windows of the store. But it was done without any “ authority, license, right, or privilege from the lessor.”
    The court dismissed the complaint, and the plaintiffs appealed.
   The following opinion was delivered at special term :

Freedman, J.

Plaintiffs’ claim to relief rests wholly upon the lease by Ann Grillett of the store on the first floor of Ho. 85 Forsyth street.

This lease did not carry with it an implied covenant against the obstruction of the windows in the rear of the store. The statute (1 Rev. Stat., Edm. Ed, 689, § 140) is explicit that no covenant shall be implied in any conveyance of real estate—and a lease is a conveyance within the definition of that term contained in the statute. The only exception that has ever been recognized by the courts is that the grantor or lessor is held to warrant, by implication, that he has title. In all other respects the rule of caveat emptor applies (Canaday v. Stiger, 3 Jones and Sp. 423; affirmed 55 N. Y. 452).

Nor did the lease carry with it, as apart of the thing actually demised, the right in the store to derive light and air from the lessor’s adjoining land. Myers v. Gremmel (10 Barb. 537), and Palmer v. Wetmore (2 Sandf. 316), are conclusive upon me upon this branch of the case. In this connection it may be pointed out that the English doctrine of prescriptive right to ancient lights (which rests wholly upon implied covenants in deeds), though recognized in some of the United States, has been expressly repudiated in this state in Parker v. Foote (19 Wend. 318). It was held to be inapplicable to the growing cities and villages of this country. This case has been followed in Pierre v. Ferwals (26 Me. 436), Napier v. Bulwinkle (5 Richard 99), and Cherry v. Steir (11 Md. 1).

In Massachusetts, the doctrine, if it ever was recognized, was changed by positive enactment.

Nor did the lease grant the yard or any right therein as appurtenances. I agree with the learned judge who denied the motion for an injunction, that the premises are virtually described as bounded by the four walls of the store.

The lease, therefore, carried nothing beyond the boundary as an appurtenance, except, perhaps, such rights as were clearly and absolutely necessary to the enjoyment of the demised premises in any way; as, for instance, a right of way to the premises, if such right were necessary to obtain access. But the strict necessity and location of such a right must be shown by extrinsic evidence. Now, instead of its being shown that it was necessary, or that it was the intention of the parties that a right to the use of the yard should pass to the plaintiffs, it does appear that, at the request of the plaintiffs themselves, all access to the yard from the store was effectually cut off at or before the commencement of their term.

For these reasons, the erection by the defendants of a building within about two feet and eight inches of the rear of the wall of the said store, does not entitle the plaintiffs to the relief prayed for. They should have protected themselves by an express covenant.

The defendants are entitled to judgment dismissing the complaint, with costs.

Francis Byrne, attorney, and A. J. Vanderpoel, of counsel for appellants, urged :—I. Mrs. Gfillett being the owner of the two lots, Nos. 83 and 85 Forsyth street, and having erected the two houses thereon, and being still such owner when she leased respectively to the plaintiffs and to the defendants (by separate demises), the rights of the parties are to be regarded as to the apparent condition of the property. There was a yard, a privy on the same, and two windows in the rear of the store demised to plaintiffs. Consequently the plaintiffs are entitled to light and air, as they then existed. “ The lights are an essential and necessary parts of a house” (Palmer v. Fletcher, 1 Levinz, 122; Robbins v. Barnes, Hobart, 131; Nicholas v. Chamberlain, Cro. Jac. 121; Cox v. Matthews, Ventris, 237; Riviere v. Bower, Ryan & Moody, 24; Compton v. Richards, 1 Price, 27; Coutts v. Graham, 1 Moody & Malk., 396; Story v. Odin, 12 Mass. 157; Peyton v. the Mayor, &c., of London, 9 Barn. & Cress. 725). All the above are cited with approbation in Lampman v. Milks (21 N. Y. 505), and the English law, as to lights, and easements, servitudes, &c., established where the houses have been erected or are owned by the same proprietor. It is there stated, that the decision of Parker v. Foote (19 Wend. 309), as to “the first portion of the rule laid down,” &c„ “has no bearing upon the doctrine, that if a man builds a house, at the same time owning both the site of the house and the adjoining land, and then sells the house, neither he nor his grantees can afterwards build upon the vacant ground so as to obstruct the windows of the house.” The following cases — The New Ipswich Factory v. Batcheldor (3 N. H. 190); The United States v. Appleton (1 Sumner, 492)—are likewise approved therein. In Myres v. Gemmel (10 Barb. 543), the court refers to the adaptation of buildings on adjoining lands for light and air, &c.

II. Light and air, and the right to go into the yard, were easements and appurtenances, &c. (Browning et al. v. Dalesme, 3 Sand. S. C. 13, a case between tenants in the same building, as to right to use of hatch and hoist-way, and of passage and light).

III. The windows as existing, and the yard were “ apparent,’’ and so the plaintiff’s rights were to be respected (Butterworth v. Crawford, 46 N. Y. 349, which was a case of two lots and a privy built on the line and a drain from it through one lot under ground). See also Huttmeir v. Albro (18 N. Y. 48, an easement as to a rear alleyway). “It is a general rule that upon a conveyance of land, whatever is in use for it as an incident or appurtenance passes with it,” at p. 51, Voorhees v. Burchard (55 N. Y. 98). A grant of land (a mill site) by metes and bounds carried with it a mill yard adjoining as appurtenant (Marvin v. Brewster Iron Mining Co., 55 N. Y. 549, 550, and 561; and Washburn's Easements and Servitudes, 3 Ed. 37, &c., Willard on Real Estate, &c., 218, &c.).

IV. The defendants took title from Mrs. Gillett upon a covenant “that the changes they should make ” shall not interfere with “ Doyle and Adolphi.”

V. The plaintiffs fully proved their case, and the ' court assumed “ that there was an interruption of the light and air by the acts of the defendants, as stated in the complaint, and that the plaintiffs had various witnesses in court to prove such allegations,” therefore, the relief claimed should have been granted, and the motion to dismiss the complaint denied. The case of Canaday v. Stiger (55 N. Y. 452), cited by the learned Justice Freedman, as authority to sustain his views, seems to be against him, and in fact supports the plaintiff’s view. At page 454, Chief-Judge Church says r “ The parties are presumed to have been on the ground,, and known the condition of the house and the state of its completion.”

VI. If Mrs. Gillett desired to .change the legal effect of the demise, and the rights thereunder, she should-have reserved a privilege by agreement to build upon the yard, and to close up the windows. The mere fact that plaintiffs did not use the privy, did not prevent them from doing so; they did not surrender or part with any of their rights.

T. D. Pelton, attorney and of counsel for respondents, urged as to the matters discussed and decided:—I. The plaintiffs are not entitled to relief, upon the ground that the defendants’ occupation will interfere with the light and air flowing through their windows. There is-no authority in this state to support the plaintiffs, and they must rely upon the English doctrine in relation to-the obstruction of light and air. By that doctrine, and in the absence of express grant or covenant, the right to unobstructed lights may be established in two ways. (1) By prescription—as when one’s windows have-overlooked his neighbors unoccupied land for twenty years. Although we are not directly concerned with this branch, for the paintiffs have occupied but four years, yet it should be noted that the doctrine of “ancient lights” has been expressly repudiated in-this state, and held inapplicable to the growing cities and villages of this country (Parker v. Foote, 19 Wend. 316; Radcliffe v. The Mayor, 4 Coms. 195). (3) By implied covenant against obstruction, as where one conveys his house with windows overlooking his adjoining land (Saddon v. Senate, 13 East. 79; Pomfort v. Ricroft, 1 Saund. 322, 4 Kent’s Com. 473). (a.) There can be no express or implied grant of light and air. They are common blessings, not subject of limitation, and can not be granted (Parker v. Foote, supra, 315; Cross v. Lewis, 2 Barn. & Cress. 628 Washburn on Real Property, 2d vol. 3d ed. 317; Moore v. Rawson, 3 Barn. & Cress. 340). (1) It follows that the plaintiffs must rely upon the second branch of the doctrine, or upon an implied covenant against the obstruction of light and air. (2) ISTo covenant can be implied from the lease to the plaintiffs (1 Rev. Stat. Edmond’s ed. § 140, p. 689; The Mayor v. Mabie, 13 N. Y. 155; Kinney v. Watts, 14 Wend. 38).

II. There was no demise of a right to the plaintiffs to derive light and air from the adjoining premises or rear lot. Such a right can not exist in this case without the implication of covenants. A grant can not be extended by implication (Grant v. Chase, 17 Mass. 441, 3 Cruise Dig. 47, art. 51. (1) The question presented here has been fully considered, and decided adversely to the plaintiff’s claim, in Myers v. Gemmel, (10 Barb. 537, 546); Palmer v. Wetmore (2 Sand. 316). The facts presented in these cases are so completely analogous to the present, that nothing can be added to their effect, (a) These cases have been recognized and approved by the court of appeals in Johnson v. Oppenheim (55 N. Y. 293); Washburn on Real Property, 313. (b) The same doctrine, declared upon analogous facts, is found in Collier v. Pierce (7 Gray, 18); Heverstick v. Sipe (33 Penn. 368); Mullen v. Stricker (19 Ohio 135); Morrison v. Marquand (34 Iowa, 35).

III. (1) The opinion of Judge Selden in Lampman v. Milk (21 N. Y.), is not an authority. The matter there discussed was not before the court, nor was the point essential to the decision of the case. The opinion is an obiter and not a precedent. “ A precedent in law is a decision arrived at by a competent tribunal after a pertinent inquiry upon the points bearing upon the subject discussed” (Moloney v. Dows, 8 Abb. 321; Cohens v. Virginia, 6 Wheat. 264 and 299; 1 Bishop on Criminal Procedure, Sec. 1031-1033).

IV. The plaintiffs are not entitled to relief in this action, upon the ground that the defendants have removed the privies from, and occupied the premises in the rear yard. (1) That yard, with its privies, was not appurtenant to the store. The premises are clearly described, to wit: “ all that store on the first floor, &c., to be occupied by them as a dry goods store, with the appurtenances.” There is no pretense that the privies, or use of the yard, was (like a right of way) necessary to the enjoyment of the store. Plaintiffs had privies on other premises, (a) The premises granted are clearly defined in the deed, and are limited to the four walls of the store. The premises described in a deed can not be enlarged by the word “appurtenances ” (Grant v. Chase, 17 Mass. 441; Manning v. Smith, 6 Conn. 291; 3 Cruise Dig. 272), (b) There can be no presumption that the lease carried with it anything beyond the premises described. As the yard and privies were not within the description, the plaintiff’s right to use them can only be established by evidence that the parties contemplated and understood that such right should pass to the plaintiff as incidental to the premises (Phillips on Ev. C. & H. page 1403, note 956; 1 Greenleaf on Ev. 286; Carry v. Thompson, 1 Daly, 35). “Whether a thing not specifically described in the deed is a parcel or not of the thing demised, is always a matter of evidence” (Buller, J. in Doe v. Burt, 1 Term Rep., 704). (c) The facts show that it was not intended by the parties that a right to use the yard and privies should pass to the plaintiffs.

Mr. Pelton also made, with others, the following point: The defendants had occupied the yard and removed the privies before the commencement of this action; the court will not restrain the defendants by injunction from doing an act already done ; but leave the plaintiffs to their remedy at law, which is ample (Bean v. Coleman, 44 N. H. 547); and also points as to the effect of the alteration.of the windows by the lessee.

By the Court.—Morell, Ch. J.

The decision of this case rests, I think, solely upon the construction, force, and effect of the lease from Ann GHJlett to the plaintiffs.

I am unable to discover anything in the extraneous or cotemporaneous facts or circumstances, which creates, enlarges, or varies the rights of the tenants. Whatever they acquired was under and in pursuance of their lease. If there was any parol understanding, it was before the lease was signed, and can not, therefore, be allowed to vary or contradict the terms of the lease. ISTor can any right be derived from the former occupancy, or the designed present use of the building. In both cases, doubtless, light and air were essential to its beneficial use and enjoyment; and the destruction or interruption of either, may seriously impair the habitability of the structure.

But light and air, however free and of common right, are not so inherent in a demise, that the lessor must absolutely protect his lessee in the free and uninterrupted enjoyment of them. The right maybe secured by express contract, and the tenant may protect himself, by making the lease terminable upon the happening of any substantial interference by the landlord, or those under him, with the use of these essential and desirable elements. But the law implies no such right and imposes no such obligation.

There is no express covenant in the plaintiff’s lease which covers the right they claim. The only covenant is of quiet and peaceable enjoyment, which is broken only by actual, or possibly constructive eviction, and is always satisfied by damages.

The case rests, therefore, as has been already said, upon the quantum of interest the plaintiffs took under their lease. And for the purpose of examining the question, it may be treated as if the threatened obstruction was by Mrs. Grillett, and not by her tenants.

And it here may be said, that there is nothing in the letting to the defendants, which creates or recognizes any right in the plaintiffs, other than such as may be fairly im plied from their, lease.

It is well settled that the English law as to lights has not been adopted in this country (Parker v. Foote, 19 Wend. 309; Auburn, &c., Plank Road Co. v. Douglass, 9 N. Y. 447).

There is, therefore, no prescription growing out of a long user, which gives a right to a continued and uninterrupted use of light; and unless it passes to a tenant, as an incident or appurtenant to his lease, the law will not restrain the landlord from occupying or improving the adjacent space, even though such occupancy may impair or totally destroy, the beneficial use of the tenant’s property.

This may seem harsh doctrine ; but the rights, duties, and obligations of parties are governed by well-settled principles of law, and by the application of such principles their rights must be determined. If such principles do not afford sufficient, protection, it is always in the power of parties to protect themselves by express contract.

The plaintiff’s lease was of the store within its four walls. It did not cover any right to the use of any adjacent space, for any purpose whatever. Light is not an appurtenant, in the sense that it legally appertains to and is a part of the principal thing. If ancient lights are not protected in this country, even where the use has continued and been uninterrupted for a long period of time, how can a tenant whose use of the light begins only with his term claim such protection ? His landlord does not engage that he shall have any more than is specified. What he does not express, can not be implied, unless the law implies it. And implications of an obligation on the part of a lessor in his lease, except that the tenant shall quietly enjoy, can not be made.

The case of Palmer v. Wetmore, in this court (2 Sandf. 316), determined this question. The action was upon the covenant to pay rent. The defense an eviction.

The plaintiff owned several lots, one of which he demised to the defendant. He afterwards built on some of the other lots, and the building obstructed the light in the defendant’s windows. Oakley, Ch. J., says,—"where there is no question of ancientlight, the owner of a lot adjoining a house may so improve or build upon his lot, as to shut up the windows of such house that are situated in the end or side adjacent to his lot. We see no reason why a landlord, in respect to his tenant, is more restricted as to his vacant lots than he' would be in respect to any other owner, for years or in fee, of an adjacent house.”

That decision ha.s not been authoritatively disturbed, and the principle has been frequently recognized and affirmed (Banks v. Am. Tract So. 4 Sandf. Ch. 438, 464; Mahan v. Brown, 13 Wend. 261; Picard v. Collins, 23 Barb. 445, 458).

It is not necessary in this case, to go to the extent to which the doctrine is carried in Palmer v. Wetmore. There the payment of rent was resisted on the ground of a constructive eviction by reason of the obstruction of light to the demised premises. That, if any, was the tenant’s remedy ; or, if there was any breach of a covenant, express or implied, he might have sued for damages.

But a remedy at law does not give a remedy in equity ; on the contrary it destroys the right to go into equity, except where the injury is irreparable for damages.

There is a dictum in Lampman v. Milks (21 N. Y. 512), where the learned judge refuses to recognize Parker v. Foote (ubi sup.), as bearing upon the doctrine, “ that if a man builds a house, and at the same time owning both the site of the house and the adjoining land, and then sells the house, neither he nor his grantees can afterwards build upon the vacant ground, so as to obstruct the windows of the house.” But the learned judge did not refer to Meyers v. Gemmel (10 Barb. 537), nor to Palmer v. Wetmore (ubi sup.), both of which cases are cited with approval in the much more recent case of Johnson v. Openheim (55 N. Y. 293), where the court says, ‘‘the mere building upon or other improvement of the adjoining lot, by which the premises of the defendants were rendered less commodious of occupation, or less suitable to the uses of the defendants, did not affect the right of the plaintiff to their rent, or authorize the defendants to terminate the lease and abandon the premises.”

The dictum in Lampman v. Milks was obiter. The action was for diverting a water-course, and involved the question of servitudes and easements passing under a deed, and not rights which at most rest upon prescription.

Upon the whole, I am of the opinion, that this case was decided correctly at the special term. There was nothing expressed in the written lease, or that could legally be implied from it, nor in the relation of the parties, that gave to the plaintiff such an absolute right to the use of light to the demised premises, as, if he was deprived of it by their lessor or his grantees, would constitute a cause of action.

It follows, therefore, that there has been no threatened illegal interference with or obstruction of such light, so as to furnish a status to the plaintiffs to seek the restraining power of the court to prevent it.

The judgment should be affirmed, with costs.

Speir, J., concurred.

Curtis, J. (dissenting).

In 1859, Ann Gillett conveyed to Samuel Lord thirty feet in depth the rear part of lots Hos. 83 and 85 Forsyth street. These two lots were adjacent, and twenty-five feet each in width, and one hundred feet deep. The fronts were occupied by two five-story buildings, fifty-one feet in depth, the upper stories used as tenements, and the first stories as stores or tenements. In the rear of these, there was left a yard nineteen feet in depth, which Ann Gillett in 1859 covenanted with Samuel Lord not to obstruct within the space of ten feet for twenty years, granting him the privilege of windows, &c.

In 1870, Ann Gillett leased to the plaintiffs, “all that store on the first floor of the building known as No. 85 Forsyth street, in the city of Hew York, to be occupied by them as a dry-goods store, with the appurtenances,” for the term of five years from May 1, 1871. May 1, 1874, Ann Gillett leased to the defendants the two houses and lots, Hos. 83 and 85 Forsyth street, for the term of ten years, subject to the lease to the plaintiffs, and with the provision that any change made by them for business purposes should not interfere with the plaintiffs in the occupation under the lease to them.

Previous to the letting of the store, No. 85 Forsyth street, by Ann Gillett to the plaintiffs, the first floor was partitioned in the middle, the front part being used as a store; and the rear part, which was divided by partitions into two rooms, was used as a residence. There were two windows in the rear wall, about three by six feet in size, and a door between them leading into the yard in the rear, where there were privies. There was another door opening from the “floor” into a hallway, which led from the front entrance to the yard.

The plaintiffs agreed to hire the store upon conditions : that the partition should be taken out; that the doors leading into the rear yard and hall should be closed up ; and the rear windows be bricked up about three feet, and the remainder be barred by six or eight iron bars. These changes’were made before the plaintiffs’ lease commenced.

The plaintiffs never had any means of access to the yard, except by going into the street, and thence through the hall. They never had keys to, and never used, the privies. They had water-closets elsewhere. In 1873, the plaintiffs, without consent of the landlord, enlarged the rear windows to about five by eight feet, their present size. This was prior to the lease of Ann Grillett to the defendants. Since the execution of the lease from Ann Grillett to the defendants of May 1, 1874, the latter have erected a wall within three feet of the rear of the plaintiffs’ store, about twenty feet high, and extending about four feet above the top of the plaintiffs’ rear windows. There is room between the wall and windows for the plaintiffs’ shutters to swing. The wall is painted white.

The evidence showed that this wall obstructed the light flowing through the present windows, and injured plaintiffs’ business.

The object of the action is to restrain the defendants from erecting the wall, and from occupying the yard to the exclusion of the plaintiffs.

The plaintiffs insist that they have the right to the full and unrestricted enjoyment of the light and air flowing into the store, to the extent that they had before the defendants obstructed it, and also the right of access to the yard, and that the defendants should be enjoined from proceeding with the building.

The complaint was dismissed at the trial, and the plaintiffs excepted.

It is unnecessary to consider the evidence as to whether the plaintiffs were interfered with by the defendants, as complained of, in respect to light and air, as the learned judge at the trial stated, that for the purpose of hearing the motion to dimiss the complaint, he would “assume that there was an interruption of the light and air by the acts of the defendants, as stated in the complaint, and that the plaintiffs had various witnesses in court to prove such allegations.”

The plaintiff Doyle testified: “I did not exercise the right to visit the water-closet, because we had water-closets in the Grand street store. ’ ’ The evidence showed that the latter were in plaintiffs’ adjoining premises, and that there were water-closets in the rear of the yard of IsTo. 85 Forsyth street.

The first question for consideration is, what construction is to be given to the lease from Ann Gillett to the plaintiffs. The premises leased are therein described as “All that store on the first floor of the building known as ISTo. 85 Forsyth street, &c., to be occupied by them as a dry goods store, with the appurtenances.” The store with the appurtenances is distinctly demised, and the character of the occupation of it carefully designated.

In addition to what is expressed in the lease, there is other written evidence of the intention of the parties, as to what was to be enjoyed with the store. In the agreement of Ann Gillett of July 27, 1870, produced in evidence by the plaintiffs, she binds herself “ to cut a doorway in brick wall, and brick up present back door, and put iron bars in the two rear windows.” This agreement was carried into effect. It clearly manifests an intention that the plaintiffs should have the enjoyment of these windows looking into the yard, and that moreover she would place iron bars there to protect them in such enjoyment from any trespasses, incident to the open nature of the yard, and by the change of the door another means of access was to be created. It is evident she knew these windows, with their incidents of light and air, were elements of value in the occupancy and letting of her store, from her having leased to Samuel Lord in 1859, for two hundred dollars, the right for twenty years to place windows in his building looking into this very yard, which she also-covenanted not to be obstruct.

This shows that she knew, when she undertook to protect these windows as a condition of the plaintiff’s taking the store, that their use without obstruction was-valuable, and that she intended it to pass with the store to the plaintiffs under the lease. Again, if her lease to the defendants of May 1,1874, is referred to, embracing-the premises in question, and under which the defendants claim, it will be seen that she not only makes it subject to the plaintiffs’ lease, but also provides that the defendants shall not interfere with the plaintiffs in the occupation under the lease to them. The evidence is, that the year previous to the lease to defendants, the-plaintiffs had very much enlarged the rear windows, and increased their capacity for light and air, to that extent modifying the nature of their occupancy.

From all these instruments which are to be considered together, it is apparent, that it was the intention of the lessor that the plaintiffs should have the right to the use of the rear windows, and access to the yard, without obstruction or interference. The written evidence shows the enjoyment of these rights and incidents was in the contemplation and intention of both parties at the time.

It is shown that the light from these windows is-highly desirable and beneficial, and necessary for a dry goods store, that being the occupancy of the prem•ises, to which the plaintiffs were limited by the terms of their lease, and that their sales largely depended upon it. It can not be presumed that the plaintiffs were ignorant of its value when they took from their lessor an agreement specially providing for the protection of these windows. If the yard and windows were incident and appurtenant to the premises, can there be any question that they passed to the plaintiffs under the description of the store “ with the appurtenances,” as stated in their lease ? It is urged by the defendants, that the plaintiffs did not use the yard. They used it so far as it was an auxiliary to the enjoyment of the windows looking into it; they derived light and air from it, and if they did not use the water-closets, it was a preference which did not affect their legal rights in ■respect to the privileges of the yard.

From Bucher v. Sandford (Gouldsborough R. 99, Anno, 30 Eliz.) to Voorhees v. Burchard (55 N. Y. 98), and Marvin v. Brewster Iron Mining Co. (Id. 538), the courts have been constantly called on to construe what passes by the words cum pertinentus. It was early held that a curtilage or court-yard is parcel of the house and passes with it, because its use is a necessity (Curden v. Track, Croke Eliz. 89). A late jurist says, “ If a house or store be conveyed, everything passes which belongs to, and is in use for it, as an incident or appurtenance” (4 Kent Com. 467). He also again says, “That the right to the enjoyment of free and pure air, as incident to the estate, is likewise under the protection of the law ” (3 Kent Com. 448).

These definitions seem broad enough to embrace the rear windows and yard, and the tendency of the decisions is rather to enlarge than to restrict their scope.

In Huttemeyer v. Albro (18 N. Y. 50), it is said by Strong J., “The easement will exist for the common benefit, &c., if it is apparent from the conveyances and the circumstances connected with the manner of the use and enjoyment of the land, that such was the intention of the parties.”

When anything is granted, access, and all else necessary for its full and free enjoyment, passes as an incident appurtenant (Comstock v. Johnson, 46 N. Y. 620; Voorhees v. Burchard, 55 N. Y. 103; Marvin v. Brewster Iron M. Co. Id. 549; Browning v. Delesme, 3 Sandf. 18).

Having arrived at the conclusion that the lease to the plaintiffs must be construed to pass, as appurtenances to the store, the rear windows and the unobstructed flow to them of light and air from the yard, as it was at the time of the demise, and also the right of access, and that the defendants’ title was subject to the occupancy of the plaintiffs, under their lease, of the yard as it then was, it becomes unnecessary to consider most of the remaining questions presented on the argument. Whether an implied covenant for quiet enjoyment exists in the lease to the plaintiffs, and what application should, be given in this case to the maxim, Cujus est solum, ejus est usque ad cesium, and what rule prevails as to ancient lights are among them. Nor do the cases of Palmer v. Wetmore (2 Sandf, 316), and Myers v. Gemmel (10 Barb. 537), seem relevant in this point of view, for they are instances where the landlord built on adjoining lots and not upon any part of the demised premises. Neither does the question arise to be necessarily passed upon, as to the effect upon the first conveyance of a severance by the common owner, upon the holders of the two portions, in respect to any open and visible servitude or benefit affecting their respective parts by him previously created.

Under this construction of the case as to what passed by the words, “ with the appurtenances,” it would seem that the plaintiffs were entitled to the injunction they moved for.

The judgment and order appealed from should be reversed, and a new trial granted, with costs to abide the event.  