
    Jane Remsen, Respondent, v. Charles A. Wingert, Appellant.
    First Department,
    April 6, 1906.
    Real property—easement- in light and air created by deed—specific performance — when vendee of lands subject to such easement will not-be compelled to take title. •
    A vendee of lands which the vendor agreed to convey in fee and free from incumbrances, will not be compelled tp. complete his purchase when the premises aré subject to an ancient easement created by deed, which gave to an adjoining owner. the right to keep the windows facing the land’ “forever" open-,” even though the building existing, at the time the easement was created has been torn down and replaced by another building.
    An easement in light and air created by deed, unlike an easement in a party wall created -by an implied agreement, survives the destruction of the building and is riot lost by non-user. And when the present owner of the dominant tenement claims "the right to light and air, and has so notified the vendee, 'equity will not force the vendee to -take title when doubtful questions of law arid fact exist concerning it, and all the- parties entitled to be heard are not before the court.
    Appeal by the defendant, Charles A. Wingert, from a final judgment of the Supreme- Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 18th day of October,, 1905, directing the specific performance of a contract to purchase real estate, with- notice of an intention to bring tip for review upon such appeal an interlocutory judgment entered in said clerk’s office on the 24th day of August, 1905.
    
      Theodore T. Baylor, for the appellant.
    
      John Ewen,[William R. Wilder with him on the brief, Wilder & Anderson, attorneys], for the respondent.
   Clarke, J.:

The .plaintiff, and the defendant entered into a written contract under seal, wherein the plaintiff agreed to sell and the defendant agreed to buy. a certain described piece of land, with the buildings thereon, situated in the city óf New York and known as No. 2 Watts street. In an.d by said contract the plaintiff agreed to deliver on the closing day “a proper deed containing a general warranty and the usual • full covenants for the -conveying and assuring to them the fee simple of the said premises, free from all encumbrance.” The defendant rejected the title and refused to perform upon the ground that the title was not marketable. It will be necessary to consider but one of the defects insisted upon. The learned trial court made this finding of fact: “ That the building erected on the premises in question, which is known as Ho. 2 Watts street, has been in existence in its present state, for one hundred years. That for some tirhe prior to May 2nd, 1835, the said premises and the adjoining premises known as Ho. 4 Watts street were owned in common by Abraham Eemsen and James Ackerman. That on that day the said Ackerman deeded to the said Eemsen his interest in the premises Ho. 2 Watts street, and the said Eemsen deeded to the said Ackerman his interest in .the premises Ho. 4 Watts street. That in the deed from the said Ackerman to Eemsen there is reserved ‘the privilege of keeping the windows forever open that are in the easterly side of said house Ho. 4 Watts street,’ and in the deed from Eemsen to Ackerman there is granted ‘ also the privilege of keeping the windows open forever that now are in the easterly side of said house Ho. 4 Watts street.’ That the said provisions are the covenants alleged to create an easement in favor of the premises Ho. 4 Watts street over the premises in question, and are the basis of one of the objections made by defendant to said title.”

The court further found: “ That some time in the year 1895 the building on the premises No. 4 Watts street, which was a brick front, frame, two-story building, was torn down and a six-story .brick factory and business building was erected in its place. That the building destroyed had no windows on the side facing No. 2 Watts street. That the building erected in its place has on the side facing upon No. 2 Watts street at least twelve windows.”

In his opinion the learned court said: “ The fact that Ackerman reserved the ‘ privilege of keeping the windows forever open that are on the easterly side of said house No. 4 Watts street,’ etc., does not give the owner of Ho. 4 Watts street an easement over the property which'the plaintiff contracted to sell to the defendant, because the evidence shows that the building that was on the property at the time the Ackerman deed was made is not now on said property, and an easement did not survive the destruction of said building that-was on the property at the time the easement was created. (Heartt v. Kruger, 121 N. Y. 386.)”

The question in Heartt v. Kruger was whether or not. the tenements of adjacent owners were subject to a perpetual party-wall easement, dominant' as to - the' defendant’s and servient as to the plaintiff’s properties. The original owner of the two' lots had erected two buildings thereon, with a party wall dividing, them.. He . conveyed both premises to one Falk and topic back from his grantee a mortgage on the lot owned by the defendant, which described the westerly line of the lot as-running “ through the centre of a party-wall.” The buildings Were subsequently burned down. The defendant then obtained title to one lot and erected upon the old foundation Wall a party wall of the same thickness as the former one. Judge Gray said : “ This erection of the new wall partly upon the adjoining lot was without any other right in the defendant than was to be found in the conditions of his title. * * * Where will wve find the legal foundation for such a claim ? There had certainly been no agreement, and there was np express grant of any easement in the land by 'the common owner, Falk, and I do not see how any grant arose by implication from his mortgaging, the lot now owned by the defendant. The only language in the mortgage capable of such an implication was in the description of the westerly boundary which I have quoted above. That, however, was merely language of description, and, while sufficient to create a servitude in the adjoining lot for the purpose of the existing party-wall, was insufficient to predicate any grant' of a perpetual easement upon. * * * The implied agreement"that the party-wall existing at the time of the conveyances of the two lots by their common owner should continue in its use and occupancy as such, cannot be extended so as to relate to a changed condition of things caused, by the casual destruction of the wall and buildings.”

The decision that an implied agreement growing out of a description which carries to the center of á . party wall does not create a perpetual easement which survives the destruction of the buildings, seems not to apply to an easement created by reservation “ forever ” in mutual deeds.

Deeves v. Constable (87 App. Div. 352) is cited by respondent. But it can have no force in tiffs controversy, for it is said in the opinion : “ The covenant in the deed contains no reservation of any easement of light and air. * * * Such removal (of the old building) carried with it no right to put windows in the side walls (none such having been in the old building) and thereby acquire an easement of light and air over the restricted space for the benefit of its side. The restrictive covenant does not provide for it and no conditions are shown to exist which require that it should be applied to it. Easements of light and air are protected only where they are reserved and remain beneficial to the property in whose favor they exist.”

There is no doubt that an easement of light and air, at least to the extent of the windows then existing, was reserved in the mutual conveyances, and that, if existing, said easement would be still beneficial to the property. When one acquires a title by deed, it will not be affected by non-user unless there is a loss of title in some of the ways recognized by law. Mere non-user, however long continued, does not create an abandonment. (Conabeer v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 484, and cases cited.) In Welsh v. Taylor (134 N. Y. 460), it was said : “ A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land. Hence his title is not affected by non-user, and unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law, he may rely on the existence of his property, with full assurance that when the occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired.”

Said Mr. Justice Laughlin in McCullough v. Broad Exchange Co. (101 App. Div. 566): “ * * * This right of way and easement were acquired by deed and the rule is that such an easement is not extinguished by non-user, but only by grant or adverse possession. * * * It was formerly held in England that the easement of ‘ancient lights’ might be lost or suspended until the premises were restored to their original condition, by enlarging or changing the position of the windows, but it is doubtful whether that rule still prevails * * * ; and moreover it was never given place in our jurisprudence.”

An easement is an interest in land created by grant or agreement, express or implied, which confers a right upon the owner thereof to some profit, benefit or dominion, or. lawful use out of or over the estate of another. “That the covenant against- incumbrances is broken by an outstanding easement of any kind is perfectly well established by the authorities in this State.” (Huyck v. Andrews, 113 N. Y. 81.)

This is an action for-specific performance. • The owner of No. 4 Watts street, to-which the easement is-claimed'to be appurtenant • by reservation in the deed, is not a party, and no determination here had would bind'or control hen The facts are doubtful Or in dispute as to- these matters What windows existed at-the time of the deed in 1835 on the easterly side of No. 4 Watts street; whether the house pulled down in 1897 was the same house which was standing in 1835 ; what windows, if any, were on the east side of that house so pulled down. Further, it distinctly appears in evidence that the building now No. 4 .Watts street has a large number of windows upon'the east side, and that the present owner thereof still claims the easement for light and. air, and has notified the defendant in person that if he attempted to build on the line he would have a law suit on his hands. It, therefore, seems to me that this case comes within the. rule as stated by Mr. Justice O’Brien in Salisbury v. Ryon (105 App. Div. 445, citing many cases in the books, upon this subject), that the court will not force a party to take title where doubtful questions of law and fact exist concerning it, and 'all the parties who have a right to be heard upon that, question are not before the court.

The judgment should, therefore, be reversed, with costs to the appellant, and judgment should be directed, to be entered in favor of the defendant dismissing the plaintiff’s complaint, and judgment directed in favor of the defendant against .the-plaintiff On. the defendant’s counterclaim - for -the sum of $500 paid on account of the purchase .price and $185 for expenses for examining the title, together with interest thereon and costs.

O’Bbeen, P. J., Ingbaham, McLaughlin and Houghton, JJ., concurred.

Judgment reversed, with costs, and judgment ordered for d'efendant, with costs, as directed in opinion. Settle order on notice.  