
    David Ogden and others v. George Jones and another.
    1. When a lot of land was conveyed, in 1783, to P. by W, 28 feet in breadth in front and rear, by precise boundaries, but the grantor excepted and reserved to himself and his heirs and assigns, forever, one-half of the westerly wall erected or to be erected by P. or any other person holding or claiming under him on the westerly side of the premises adjoining the lot of W. and W. covenanted to pay half the expense of maintaining and supporting such wall; and P. erected a dwelling house on such lot, 28 feet in front, with a westerly wall 12 inches in thickness; and W. afterwards erected a dwelling house on his lot, using such westerly wall as a support therefor.
    
      Held, that the reservation in the deed in connection with the covenant of W. did not reserve to W. the fee in the ground on which the half of the wall was erected, nor any such property in the wall as entitled him to remove it, or to cut it away, or undermine it, or build upon it, but only the right to use it as a support for his adjoining building.
    2. Neither W. nor his grantee have any right to cut away the front of P.’s house and extend the front of the building on such adjoining lot, over the westerly line of the 28 feet, so as to present to the exterior view a front extending to the centre of such westerly wall.
    3. An injunction will be granted, in such case, to prevent a grantee of W.’s lot from interfering with such westerly wall, in any manner, except by using it as a support for the adjoining building.
    (At Special Term;
    Before "Woodruff J.)
    July, 1858.
    An application was made, in this case, by the plaintiffs for an injunction to restrain the defendants from cutting away a narrow strip of six inches in width from the front wall of the plaintiffs’ house, and extending from the ground to the top of the wall, and from extending the front of a store, in progress of erection, over and in the place of the six inches so cut away; so that the apparent width of the front of the plaintiffs’ building would be six inches less, and the apparent width of the front of the defendants’ building would be six inches greater than heretofore.
    On an order to show cause why an injunction should not be granted or continued, pendente lite, with a temporary restraint till the motion could be heard, the matter was brought to a hearing at Special Term.
    The material facts were these: In 1793, 'James Watson and James Greenleaf were each the owner of one-half of a lot of ground on the north side of State street, 28 feet in width in front and rear, and the said Watson owned a lot next westerly thereof, and the said Greenleaf owned a lot next easterly thereof.
    By several deeds the said Watson and Greenleaf conveyed the said lot of 28 feet to Daniel Penfield, describing it as beginning at the south-east comer of Watson’s lot, and running thence easterly along State street 28 feet, thence northerly 100 feet, thence westerly along Smede’s and Brown’s lot, 28 feet, to said James Watson’s lot, thence southerly along said Watson’s lot to the place of beginning, “ excepting and reserving to the said James Watson and Ms heirs and assigns, forever, one-half of the wall erected or to be erected by the said Daniel Penfield, or any other person holding or claiming under him on the westerly side of the premises adjoining the said James Watson! s lot,” together with, etc. And in the deed from Greenleaf was a similar reservation in his favor, in respect to the easterly wall.
    Watson and Greenleaf then covenanted for themselves and their heirs and assigns, each to pay one-half of the expense of keeping up and supporting said walls, respectively.
    The lot so conveyed to Daniel Penfield, (now No. 4 State street,) 28 feet in width, by sundry mesne conveyances has come to the plaintiffs in this action; and the lot of Watson adjoining, westerly thereof, (now No. 5 State street,) has come to the defendants.
    Penfield, at about the time of the conveyance to him, erected, a brick dwelling house on his lot, having a westerly wall 12 inches in thickness, and showing a full front on State street of 28 feet. Soon after a brick dwelling house was erected on Watson’s lot, for the support of which the westerly wall of Penfield’s house was used as and for its easterly wall.
    These dwelling houses have continued on such lots -until the present time, and now the defendants have taken down the dwelling house on their lot, (No. 5,) and are about erecting a large store-house thereon, and intend not only to use the said westerly wall of the Penfield house (belonging to the plaintiffs) as a support to their said store-house, but to build thereon, arid also intend to cut, and have begun to cut away the front, or six inches of the end of such westerly wall where the same forms part of the front on the street, and to extend the front or stone facing of their store-house over the line of the 28 feet to the centre line of the said westerly wall, so that the apparent front of their store will be six inches wider than the front of their dwelling hduse was, and the apparent front of the plaintiffs’ dwelling house will be reduced to the same extent.
    The injunction, sought to be continued, restrained the defendants from cutting away any part of the front of the plaintiffs’ dwelling house, or of the front end of such westerly wall, and from excavating beneath, or building upon such westerly wall of the plaintiffs’ house.
    
      Charles Jones, for the plaintiffs.
    
      Daniel Lord, for the defendants.
   Woodruff, J.

The whole of the lot No. 4 State street, 28 feet in front and rear, was conveyed to Daniel Penfield, by Watson and Greenleaf, and afterwards by Jas. T. Watson, to Jonathan Ogden, under whom the plaintiffs hold the same.

The reservation in the deed from Watson and Greenleaf to Penfield ; the covenant by Watson and Greenleaf, and the subsequent reservation in the deed to Jonathan Ogden, show, 1st. That Penfield was expected to erect, and did, in fact, erect the house upon the lot conveyed to him, covering the whole 28 feet.

2d. That Watson intended to reserve and have a right of property in half of the wall which Penfield should erect—not for the purpose of removal, as of his own absolute property, but to be used and enjoyed where it stood, (and just as Penfield or his grantees should build, keep up, and sustain the same, and not otherwise,) as and for a protection and support to the house on the adjoining lot, No. 5.

3d. That it was intended. and expected, that Watson or his grantees should have a house adjoining, (on lot No. 5,) whose front should begin at the westerly termination of the 28 feet granted, but which should be connected with, and use the end wall as a protection and support thereto; and for that purpose, and for such use, the property in one half thereof, should be vested in Watson.

4th. The wall was not only to be built by Penfield, but was to be kept up, and sustained by him and his grantees, heirs, etc. Watson and his heirs and assigns were bound to pay one half of the expense of keeping up and sustaining the entire wall. But they had, by virtue of the reservation, no right to build, nor any right to interfere with the wall, save only to exercise the limited right which its devotion to the special purpose, above stated, secured to them—and save only to use and enjoy the wall in the manner above stated, he or they had no right to come over the exterior line of the 28 feet at all. They were neither bound nor at liberty even to repair, keep up, or sustain the wall, so long as Penfield and his heirs or assigns were ready and willing to do so. They were to pay him for doing this, to the extent of one half of the expense. If Penfield and his heirs or assigns neglected or refused, they might, doubtless, ex necessitate, perform the work, and seek indemnity; but this they would do, as one of their remedies, upon Penfield’s default, and not because it was a privilege conferred directly by the terms of the deed or the reservation.

5th. That absolute property in the half of the side-wall, in the sense which would entitle Watson to remove it, or any part of it, was not the intention of the parties, nor the true construction of the instruments, is apparent, not only from the fact, that it was a wall to be erected by Penfield, but also from the fact, that it was to be kept up and sustained by him, and his heirs and assigns, while Watson was to pay one half of the expense. And if the defendants are at liberty to insist upon their ownership, as importing any other rights than above indicated, it is obvious to observe, that if their rights, as owners, were to be strictly construed, then no part of the wall on the westerly side will appear on the face of the wall on the front—and no part of the wall on the front of the lot will appear on the face, or outer surface, of the side-wall. There is no more propriety in saying, that six inches in width on the face of the front is half of the end of the side-wall, than there would be in saying, that the like depth appearing on the outer surface of the side-wall is half of the end of the front wall. A diagonal from the corner drawn through the wall, leaving the face of both walls entire, is the strict line of division between them. On a narrow and technical construction of the strict right of property, this view of the line and limit of the reservation would be accurate. But in the view above taken of the practical uses and purposes for which the reservation was made, it is clear, I think, that the defendants have the use of the wall, so that it shall serve as a protection and support to their building, without so rigid a regard to the line last suggested.

But neither view of the subject gives them any right to cut away or remove the front surface for any purpose.

6th. Watson, and under him, the defendants, were to have and use the wall that Penfield and his assigns should build, and did build, and as he or they did build it, and not otherwise, and no other or different wall. They had no right, (so long as Pen-field and his assigns did erect, keep up, and maintain a wall on the westerly side of the lot conveyed to Penfield,) to build any wall, or any part of a wall on the premises conveyed, nor to enter on those premises for any such purpose. They were to take, have, and use the wall Penfield, etc. built, and that only. They cannot go upon, or over the line of the 28 feet, to build under nor over the wall he erected. Nor can they extend the front of their building upon or over any part of the lot granted to Pen-field. If the wall erected, and heretofore sustained, does not now fully satisfy the wishes of the parties, its alteration or extension is a proper subject for negotiation and mutual arrangement.

And finally, the construction above given to the deeds—the reservation and the covenants—is the construction given thereto by the immediate parties and their grantees. The actual erection of the houses in the manner above suggested, and the use and enjoyment thereof for over sixty years, with all the benefits and advantages to the plaintiffs, and their grantors, (if any there be,) in having the front of their house exhibit a width of 28 feet, ought to conclude the parties. Indeed, the very fact, that the defendants now assume to make their front wall extend over the place in contest, is an admission that they are seeking not to use or treat it as a side-wall of the adjoining house, (erected by another,) in which they have an ownership, but to make it a part of their own front wall, and so to exhibit it in external appearance.

The instruments, and the acts, and conduct of the parties under them, for over 60 years, show, I think, not only that the whole land was conveyed, and intended to be conveyed, but that the intent was, from the beginning, that Penfield and his assigns should have a front óf 28 feet, and a building of that width, subject only to a use of one half of the wall on the west side, (which he should erect, and he and his assigns should keep up and sustain,) as a protection and support to the house of Watson and his assigns, which they might erect adjoining, but not in any part upon or over the premises described in the deeds.

And Penfield having so erected his house, and the same having been used and enjoyed, as it now is, for more than 60 years, the front face of the wall in front, is to be protected from encroachment.

These views in like manner compel me to the conclusion that without the plaintiffs’ consent, the defendants have no right to build under nor upon the wall, nor to extend it towards the rear. As it was built, and has been kept up and sustained, they have a right to use it as a support to the house or store which they are now building.

The injunction heretofore granted, must, therefore, be continued.

Ordered accordingly.  