
    WRIGHT against EVANS.
    
      New York Common Pleas; Special Term,
    
    
      January, 1867.
    Injunction.—Covenant not to Build.
    A covenant not to erect a “building” within a certain distance from a boundary line may be held, on evidence of the circumstances under which the covenant was made, to preclude the covenantor from erecting a fence, which would have the same effect in respect to shutting off light and air.
    An injunction may be granted to restrain the covenantor from erecting such a fence.
    Motion to dissolve injunction.
    This action was brought by Mrs. Emma L. Wright against Silas G. Evans.
    The complaint alleged that the plaintiff was owner of two lots known as Ho. 226 Madison avenue, upon the rear of which there was a house and lot fronting on Thirty-eighth street, in which plaintiff resided. That in April, 1865, the plaintiff entered into a contract to sell the defendant one of the lots on Madison avenue adjoining the premises on Thirty-eighth street, occupied by the plaintiff as her residence. This agreement of sale contained a stipulation that the deed of said lot should contain “ a restriction against erecting any building on the same within fifteen feet of the rear line, and the usual restrictions against nuisances.”
    The complaint farther alleged that on the premises, Ho. 226 Madison avenue, was a valuable house belonging to the plaintiff, with windows in the rear, on the side looking out upon the open space or yard in the rear of the defendant’s house.' That the front part of the plaintiff’s lot, extending back within thirty feet of the rear, was an open yard. That the rear part of the plaintiff’s lot was occupied by a house twenty-four feet four and a half inches (the width of the lot) by thirty. That the front part of the defendant’s lot was covered by the defendant’s house, extending back eighty feet to the rear part of the defendant’s lot, which was an open yard area. That all the surrounding buildings were built up in such a manner that it was impossible to light the plaintiff’s building on the side adjoining the defendant’s yard, except from windows looking out the side of the yard ; and that, at the time the plaintiff sold the lot on Madison avenue to the defendant, the windows in the plaintiff’s building were constructed the same as they now were, and the plaintiff derived the light by which to light her house from the same source, the light passing across the open yard in the rear of the lot sold to the defendant.
    The plaintiff further alleged that it was expressly understood and agreed between the parties, at the time of the sale, that the defendant should not, under any circumstances, obstruct the lot in the rear of the plaintiff’s dwelling, nor permit any nuisance in the yard, nor erect any building or structure in the yard within fifteen feet of the plaintiff’s dwelling, to the end that the plaintiff should at all times have and enjoy free and uninterrupted light of said windows. That the defendant had,within a few days, placed boards and other material in the yard, and threatened to build, and was erecting a wall or fence or building, directly in front of the windows in the plaintiff’s dwelling, in such a manner as totally to destroy the lights, and to destroy the plaintiff’s building as a dwelling.
    The answer of the defendant denied the principal allegations of the complaint, and alleged that the covenant on the subject which the deed contained, was simply a covenant against nuisances with the words, “ no building to be erected within fifteen feet of the rear of said lot.”
    
      Amos G. Hull, for the plaintitr.
    I. The covenant in this case is sufficiently broad to cover any building or part of a building, or structure connected with the building. The intent of the restriction in this covenant is manifest from the circumstances which surround it. It is clearly manifest from the pleadings, the affidavits, ¿nd the covenant itself, that the restriction could not have contemplated anything else,, except the admission of light and air. “ Covenants are to be construed according to their spirit and intent” (Quackenboss v. Lansing, 6 Johns., 49). Technical words are not necessary to a covenant. Any words will be sufficient which will show the intention of the parties (Cruise's Digest, vol. 4, p. 393, title Deed, chap. 25, § 5). If the intention of the parties is clear, that intention must prevail against the strict meaning of the words. “ Qui hcaret in Uteri, hcaret in cortice " (Jackson v. Myers, 8 Johns., 388; Moore v. Jackson, 4 Wend., 58; Roberts v. Roberts, 22 Id., 140). “ Benigna sunt faciendoa interpretaHones, propter simplicitatem laicorum, ut res magis valeo,t quam, per eat."
    
    
      II. The answer does not deny but that the deed which the defendant alleges was made July 25, 1865, contains the same restrictions contained in the contract, the deed not being on record,-and the plaintiff being unable to ascertain what she did sign, and not knowing but that the deed contains the same clauses as are set forth in the contract, and nothing being alleged to the contrary in the answer, and being thereby unable to ask a reformation of the deed until she can be advised what she has signed. A court of equity will protect the plaintiff under her contract for a reasonable time, to the end that she may reform the deed, and make the same conform to the original and true and correct agreement between the parties.
    III. But the defendant in this action admits the existence of the restrictive covénant, and puts his case on the construction of the word “ building.” . But the literal meaning of the term is not to prevail against the manifest intention of the parties. The construction of a wing, or wooden wall or stone wall twenty feet high, and as an appurtenance to the main building, is as much a part of the building, and is to be deemed as much a component part thereof a-s any rafter or beam within the same. Such a building violates the covenant as much as though the whole body of the house was placed back upon the restricted ground. Such a structure is in no sense a fence. It is an abuse of language to call it & fence. Defendant’s answer calls the structure a fence.
    
      Henry Hilton, for the defendant.
    I. (2 Parsons on Contracts [5th ed., A. D. 1864], p. 538, note q). “ Words of exception or reservation in any instrument are regarded as the words of the party in whose favor the exception or reservation is made (10 Coke, 106, b. 2; Compt. & J. [Engl. Excheq.], 244, 251; 2 Sumn., 366, 381; 1 Story, 360). And they would be construed against such party (Id.; 2 Barnw. & C., 197; 5 Id., 842; 3 Johns., 389; 11 Id., 191; 9 Geo., 497).
    Borst v. Empie, 1 Seld., 40: “ Is the use of the water restricted to the business of the tannery ?” [The clause was : The (plaintiffs) grantors do reserve to themselves and their use (sic) a certain well and waterworks, laid down for the purpose of supplying the tannery aforesaid with water.] “ In determining this point, which is the important one in the case, we are to hold to a strict construction of the words of the reservation as against the party whose words they are, and against the plaintiff in this cause, who stands in the place of that party; and if an advantage can be gained from any uncertainty or ambiguity in the words, the defendant is entitled to the benefit of it ” (1 Preston's Sheppard's Touchstone, 88; 3 Johns., 387; 8 Id., 400; Jackson v. Gardner).
    Ives v. Van Auken, 34 Barb., 566. “ This is most clearly a reservation, and not an exception [the words were ‘ reserving a privilege in the well,’ &c.], and the question presented depends upon the construction to be put upon the reservation. The rule of law construing such a reservation, is to hold to a strict construction of the words of the reservation, as against the party whose words they are. And so strict is the rule in this respect that if any advantage can be gained from any uncertainty or ambiguity in the words, the party making the reservation is not entitled to it, but the party against whom the reservation is made is entitled to it ” (Citing Borst v. Empie, 5 N. Y. [1 Seld.], 40, &c., supra).
    
    
      Hilliard on Injunctions (chap. 27, Easements), p. 444. “ The language claimed to establish an easement of this nature will be construed strictly.” Thus a covenant that no building except monuments and tombs should be erected on the land lying on the east side of a street, and opposite the land conveyed, was construed to restrain building only exactly opposite Wood, V. C., saying, “ if the words were doubtful, and it could be construed in favor of the defendant (the covenantor) the general rule would be this, that it being equivalent to a grant on the part of the vendor, the construction must be taken most strongly against the grantor ” (Patching v. Dubbins, 1 Kay Ch., 13, 14).
    If the plaintiff’s construction is correct, the defendant has only a right of way and a right of prospect over the fifteen feet of the rear of his premises. “ For if he could not enclose any portion of it he could not use it permanently in any other way without encroaching on the plaintiff’s rights. If this had been the intention of the parties, they would naturally have carried it into effect by a simple conveyance of a right of way and prospect to the defendant on the fifteen feet (Jackson v. Allen, 3 Cow., 220).
   Daly, F. J.

It is to be taken for granted, that the deed, which has not been put upon record, but is in the defendant’s possession, has the covenant which, by the contract of sale, was to be contained in it.

The structure which the defendant was about to erect, a wooden fence, twenty feet high, extending from the defendant’s south wall to the rear of his lot, is, in my judgment, “ a building” within the meaning of the covenant. In construing a word like this, in an instrument, we are not confined to its strict and literal meaning, but it is to be taken in the sense which the parties intended, and what they intended is to be gathered from the whole instrument and the subject matter (Jackson v. Myers, 3 Johns., 395; Platt on Covenants, 136).

“ The law,” says Bacou, “ will rather do violence to the words, than break through the intent of the parties ” (Bao. Abr. Leases, K). Following this rule of construction, there is no difficulty in ascertaining what the parties meant by the restriction “ against erecting any building within fifteen feet of the rear line ” of the lot sold to the defendant.

When the contract for the sale of this lot was made, there was upon the rear of the adjoining lot, which. belonged to the plaintiff, a building .which was used in connection with a house in 38th street, belonging to the plaintiff’s husband. ' The lower story of this building was a laundry, and the upper one a green house, and the laundry was lighted by a window looking out upon the lot sold to the defendant. When the plaintiff in her contract of sale, therefore, provided that no building should be erected within fifteen feet of the rear line of the lot which she sold to the defendant, the manifest intention was that the space should be left open, to afford light and air upon that side to the building on the rear of her adjoining lot.

This is obvious, not only from the situation of the premises, but from what was done immediately afterwards. The contract was entered into in the month of April, 1865, and in the sum mer following, about or very soon after, the time, when the defendant began to excavate for the building which he has erected upon his lot, the building on the rear of the plaintiff’s lot was changed into a dwelling house, by extending the front of it ten feet towards Madison avenue, by adding another story, and by closing the openings which had previously connected it with the house in 38th street; a change which was probably contemplated when she sold the adjoining lot to the defendant. She purchased both lots in the year 1856, and her husband purchased two lots on 38th street, the rear of which adjoined the rear of the plaintiff’s, as indicated in this diagram.

In 1859, the plaintiff’s husband erected two costly dwelling houses upon his lots in 38th street, occupying one of them, Mo. 15, as his residence; having in connection with it, the green house and laundry before referred to, on the rear of his wife’s lot, ¡No. 226 Madison avenue. In the summer of 1 65, he changed the green house and laundry into a dwelling, which was done before the defendant had put up the walls of his building, and this alteration having been completed in September, the plaintiff’s husband took possession tif the premises as his dwelling house, where he still remains, and in the fall of the year, he sold his house and lot on 38th street. In making the alteration, the walls were left as they had stood, so that the wall of the original building, now forms the dividing line of the front and rear rooms of the house as it has been altered, which is a building twenty-four by thirty feet, having windows looking out upon the open space upon the rear of the defendant’s lot. It extends thirty feet from the rear of the lot, and the space in front of it, towards Madison avenue, is an open yard. By the terms of sale, the deed of the defendant’s lot was to be delivered to him on the 29th of May, and he probably received it about the time, for in the August following he began to erect his building, which he set fifteen feet forward fronq the rear line of his lot, extending it eighty feet towards Madison avenue.

The situation of the premises, as I have said, when the contract for the sale of the defendant’s lot was entered into, and the acts of the parties immediately thereafter, indicate very plainly what was their mutual understanding as to the nature of the restriction which the plaintiff imposed, when she contracted to sell the lot; and if the defendant were allowed to do what he has been enjoined by the court from doing, it would practically deprive the plaintiff of the benefit which she intended to secure by this covenant in her deed.

It appears by the affidavit which she has submitted, that the first story, which is now used for a kitchen, is lighted in the same way that it was before the alteration was made, and that there is no way of lighting it, except from the rear of the de fendant’s lot: so that this part of the dwelling would be as effect ually deprived of light, and I might almost say, of air, as if, in stead of the wooden fence, the defendant were to erect in the open space in the rear of his lot, what might be technically denominated a building ’ of a corresponding height with that of the proposed fence.

It is very clear to my mind, that to allow him to put up this fence would be in direct contradiction of the intent of the parties as expressed in the instrument, and I am, therefore, of opinion that the injunction was properly granted.  