
    MARY McKAY GREENWOOD, et al., Respondents v. THE METROPOLITAN ELEVATED RAILWAY COMPANY, et al., Appellants.
    
      Action for damages to premises and easements thereof caused by the construction of defendants’ railway on Chwch street, in the city of New York.
    
    The premises in question are situate on the southwest corner of Church and Vesey streets, known as Nos. 31 and 33 Vesey street, and there was one building upon them. They had been formerly known as Nos. 37 and 38 Vesey street, and owned by Trinity Church Corporation, who sold and conveyed first the lot known as No. 37, corner of Church and Vesey streets, and afterwards this lot by mesne conveyances became the property of John Greenwood, whose title plaintiffs represent. The Trinity Church Corporation afterwards sold and conveyed, in two-parcels, lot No. 38, and by mesne conveyances this lot became the property of John Greenwood. At the time Greenwood went into possession of lot No. 38, there was a dwelling house on the easterly half thereof fronting on Vesey street. Since then this dwelling house has ■ been removed, and there has been built a single building fronting on Vesey street. The depth of the lot No. 31, formerly No. 37, is 64 feet on Church street. The defendants’ railroad is in Church street, and the claim in this action is for damages for the impairment of the easement of light, etc., from that street.
    On the trial the plaintiffs were allowed to prove, and recover for, a diminution on that part of the-premises that was within the lines of lot No. 38, and the jury were allowed by the court to find damages for this cause to lot No. 38. Held, that this was error, and that for this reason the judgment should be reversed-and a new trial ordered.
    Before Sedgwick, Oh. J., and Freedman, J.
    
      Decided January 5, 1891.
    . Appeal from judgment entered against defendants upon verdict of jury, and from order denying motion for a new trial made upon the judge’s minutes. •
    
      Davies, Short & Townsend, attorneys, and EdwardB. Thomas of counsel, for appellants, argued :—
    
      There was no easement appurtenant to lot 38 that was the subject ' of recovery, and the state could authorize the construction and operation of the railway without compensation to ¡the owner of the lot. Lot 37 was laid out with reference to Church and Vesey streets, and fronted on the latter, and was so conveyed ; and lot 38 was laid out with reference to the fronting on-Vesey street, and was so conveyed. The map was by proper reference incorporated in the conveyance, and so they came to Greenwood with all the benefits and limitations that had been put upon them, for to these deeds and accompanying map the plaintiffs return for the evidence of their- primary rights. In the first place we should consider what an owner of land may do with his own with reference to the public streets already existing, or those which he undertakes to create and dedicate to the public. While the parcel of land upon which, the lots were erected was yet in one parcel, it was, we will admit for the argument, his privilege to lay out the same into streets and lots, or into lots with reference to existing streets, and when, as in this case, he thereafter grants the lots to the several subsequent grantees, the original arrangement becomes fixed and irreversible. The public either as accepting a new street dedicated, or as the owner of an old street owing a dirty to abutting property, is asked, may be required, to allow these several lots that enjoyment of the streets on which they abut, which the law has declared, viz.: access, light, air, and the machinery of the law is used to charge upon these lots from time to time such burdens by way of taxation as their relative conditions justify. If the owner chooses to demand his easements upon Church street for certain portions of his parcel, perhaps his disposition of it cannot be denied, but having assumed this attitude towards the public highway, neither he nor his grantees can add to that street a burden to. be borne by the public that it did not before possess, nor ask the city or state in administering its trust to increase its easements as already- attached, nor transfer them to additional propérty. If the public cannot diminish the easements the abutting owner has in the street, neither can it be required by such abutting owner to protect additional property in the enjoyment of that easement. So that after the owner of lands has parcelled them into city lots there are several parties interested with him, the public either as already owning an existing street, or accepting the dedication of the new one ; as it must undertake certain duties respecting these lots, and the several purchasers, who take their holdings with just the easement and burden that the original grantor put upon it. These purchasers are presumed to contract with reference to the visible condition of the property at the time of sale, and no one of them has a right ,by altering arrangements, then openly existing, to change the benefits and burdens that pertain to the several lots and the street. Lampman v. Mills, 21 N. Y. 505 ; Roberts v. Roberts, 55 lb. 275. When the public has entered upon the use of a grant and while the use continues, the privies in estate cannot resume the grant, but are bound by the deeds and acts of the grantor. Warren v. Jacksonville, 15 Ill. 236. The grantor cannot sell or dispos.e of the ground, or use it for any other purpose ; he has no individual interest remaining, except the nominal fee in trust of his adjoining ground not disposed of. Wyman v. Mayor of N. Y., 11 Wend. 501. It has even been held that when the precise location, manner or way of enjoying an easement is indefinite, yet if it ever be practically used in a certain manner it constitutes an election, and cannot be therefore changed. Outhauk v. Lake Shore, etc., Co., 71 N. Y. 174. The plaintiffs’ contention here, however, is that although the grantor of 87 and 38 gave to those several lots a definite relation to the public streets, and that too a relation harmonizing with the general distribution of land in the city into lots of fixed dimensions; and while this relation demanded an easement of light, air and access to No. 38, from Vesey street alone, excluding it from any easement in Church street, yet that he having purchased 38 may demand for it, what it had not before, an easement in the street on which it neither abuts, nor was fashioned to enjoy, and which by no title conveyed to the plaintiffs it could enjoy. With this preliminary thought, let us proceed to discover what rights lot 37 had in Church street that would entitle its owner to compensation. If the condition of facts that justify compensation in the case of 37 do not exist as to 38 it may be concluded that the latter lot is not the subject of compensation. In the Story case (90 N. Y. 124, etc.) the land had been owned by the city, and surveyed and laid out into lots and streets, and designated on a map (see pp. 144,163). Judge Danforth said: “ The official survey, its filing in a public office, the conveyance by deed referring to that survey, and containing a covenant for the construction of the street and its maintenance, makes as to him and the lot purchased a dedication of it to the use for which it was constructed. * * There was thus secured to. the plaintiff the right and privilege of having the street forever kept open as such. For that purpose, no special or express grant was necessary ; the dedication, the sale in reference to it, the conveyance of the abutting lot with its appurtenance, and the consideration paid were c£ themselves sufficient. * * The right thus secured was an incorporeal hereditament : it became at once appurtenant to the lot and formed “ an integral part of the estate” in it. It follows the estate and constitutes a perpetual incumbrance upon the land burdened with it. From the moment when it attached, the lot became the dominant, and the opening or street a servient, tenement.
    From these holdings it may be gathered that if a parcel of land has been laid out, one part as a street, one part as abutting thereon, or if a piece of land has been laid out as abutting on a street, there is a covenant implied from this arrangement that the abutting lot shall not be interrupted in its easements of light, etc., from the street. With these principles in view we can turn to the Trinity Church map, and the Trinity deed from that church to Greenwood. Trinity Church laid out 37 upon Church and Yesey, and lot 38 in Yesey street. There was a covenant, that as to these streets, subject to street uses, these lots should receive light and air, etc., the former from Yesey and Church, the latter from Yesey. With this arrangement made by the first grantor, as this evidence shows him to be, Greenwood becomes a purchaser, taking with reference to a map, that showed the relations of his lot to every other lot, and to the streets. He took, as the above opinion illustrates, all the rights and easements in the streets his grantor could convey to him, save as modified by the deed and the map that is a part thereof. In the same way when the church .conveyed lot 38 to Livingston by deed. It faced him on Yesey street; bounded him by lot 37. When Greenwood purchased 37 he took an easement appurtenant thereto and thereto alone. He did not therewith acquire a right to acquire 38 that had no such easement, or 39, or 40, and so on with the other lots through the block, and “leaven the whole mass ” with the quality that pertained to his own purchase. If he could stretch the benefit of his easement over 38, its power of elongation was limitless, and no piece of property could be sufficiently remote to escape the attachment to it of an easement which it would lose or acquire, as it might from time to time acknowledge-the owner of 37 as its own proprietor. There is a time-honored rule of law that the servient tenement cannot be burdened by any addition to the dominant estate. To the latter nothing may be tacked so as to enjoy an easement that it possesses, or that will in any estimate increase the servitude. Greenwood took 37. The law and his deed gave him certain privileges in Church street; Livingston took 38. The law and his deed gave him no privileges in Church street. Livingston conveyed to Greenwood what he himself had and no more, and when the title of the two lots united in Greenwood there was nothing in the contract that enlarged the estate conveyed to him. The attachment of lot 38 to 37 under the plaintiffs’ claim gives it an easement it did not have when it left the ownership of Trinity Church ; it puts a burden on Church street not contemplated nor conveyed, and simply increases the easement accruing to 37. This is not allowed. That a right of way to a particular close cannot be enlarged or extended to other adjoining close is simple enough learning. French v. Marsten, 32 N. H. 316 ; Hills v. Miller, 3 Paige, 254 ; Roberts v. Roberts, 15 N. Y. 275 ; Evans v. Dana, 7 R. I. 306; Baldwin v. City of Buffalo, 35 N. Y. 375, 384. In connection with this point, the attention of the court is asked to the case of Mooney v. The N. Y. El. R. Co., 3 N. Y. State Rep. 561, decided by the Court of Common Pleas of this city. It will be observed in that case that the property decided not to be the subject of damages was a part of a lot that was, from its original relation to the street, whereon the railway was, entitled to light therefrom, and yet, as it was not by its use intended or arranged to take light therefrom, it was not included as a subject of damage. How much the less should an easement of light, etc., be ascribed to a lot that by its relation to the street was never entitled thereto.
    
      
      Robert S. Rudd, attorney, and James M. Hunt of counsel for respondents, argued :—
    There was no error committed by the trial judge in his rulings upon the admission of evidence. The proof showed that the building in question was a single building, containing no dividing partition. In view of this fact it could make no difference whatever to any issue in this case, that this building -was known by two street numbers as it is, i. e. 31 and 33 Vesey street, or that the ground upon which this building now stands was formerly included in two separate lots, each with a separate number upon the map of the old*church farm. Certainly, the question at which the objection was aimed was proper. The objection was properly sustained. It had already been proven that the building in question was a single building, and upon cross-examination of the present witness defendants’ counsel had brought out the fact that the building had been so built by one Abel Thompson. It certainly could make no difference what was contained in this agreement, so long as the fact remained that there actually was no partition or division into parts of the present building.
    Five exceptions are found in the record to refusals to charge as requested. Two requests attempt to raise the question already sufficiently discussed, that, notwithstanding the fact that the building in question was actually but a single building, the arbitrary street and map numbers thereto applied should be controlling and compel a new or different rule of law to be applied.
   By the Court.—Sedgwick, Ch. J.

The action was for damages from the defendants building the roadway and running their railroad immediately along the side of plaintiffs’ premises in Church street.

The premises were on the southwest corner of Church and Vesey streets. There was one building upon them. They had been formerly owned by the corporation of Trinity Church, and then, on a map made by it, were known as lots Nos. 38 and 37. The premises are now known as Nos. 31 and 33 Yesey street. The Trinity church corporation first conveyed the lot, known as No. 37 on its map, and then by mesne conveyances it became the property of John Greenwood, of whose title the plaintiffs are the representatives. The Trinity church corporation afterwards conveyed, in two parcels, lot No. 38, and by mesne conveyances it became the property of John Greenwood. At the time Greenwood went into possession, there was upon the easterly half of lot No. 38 (now No. 31) a dwelling house, which fronted on Yesey street. That dwelling house has been taken down since and there has been built a single building,’fronting on Yesey street. The depth of the land is 64 feet on Church street. The defendants’ road is on Church street, and the claim here is for damages for the impairment of the easement of light, etc., over that street.

On the trial the plaintiffs were allowed to recover for a diminution of light in that part of plaintiffs’ premises that was within the lines of lot No. 38.

Assuming that formerly there was an easement of light over Church street existing in favor of lot No. 38, it was possible for the owner of the lot to extinguish it by any method of dealing with the property that would, for instance, convey the property without the appurtenant easement so that the grantee would not have such an appurtenance. And if he would not have it, it would not be revived or rather re-created by his conveyance. Corning v. Gould, 16 Wend. 531; Parker v. Foote, 19 lb. 309; Crain v. Fox, 16 Barb. 184; Lattimer v. Livermore, 72 N. Y. 174.

It is apparent that enjoyment by lot No. 38 of light from Church street as a right depended upon the right of that lot to prevent building upon No. 37 in such a way that the' light would be cut off from No. 38, or to prevent any other use of the lot that would have that effect. But when the Trinity corporation conveyed to Greenwood No. 37, it became the right of Greenwood to cut off the light from No. 38. Myers v. Gemmel, 10 Barb. 537, and cases there cited. This was inconsistent with the continuance in lot No. 38 of a right' to the easement, and when lot No. 38 was conveyed subject to this condition, it was conveyed without the appurtenance of the easement ; and the subsequent conveyance to Greenwood did not make a new easement or did not create a right that had not been conveyed by the Trinity corporation.

The jury were allowed to find damages from the diminution of light over the space that had been lot No. 38. For this reason there should be a reversal of the judgment and order and a new trial ordered, with costs to abide the event. '

Freedman, J., concurred.  