
    SUPREME COURT.
    Fannie E. Musgrave, plaintiff and appellant, agt. John H. Sherwood, defendant and respondent.
    
      Party-wall—rights of adjacent owners as to — Equitable estoppel—Effect of oral statements and promises made by a vendor during negotiations for the sale and purchase of real estate as to the use to which, he would devote his remaining and adjoining property in the future.
    
    Where S., who owned five adjoining new dwelling-houses, represented to M., during negotiations with him for the sale of one of them, that he was restricted from erecting other than first-class private residences on the property, and that they would be, first and last, private residences; and M., relying on these statements, purchased one of the houses as a private residence and permanent home, and then S. enlarged the other houses, not as private residences, but for business purposes, namely, as part of a family hotel:
    
      Reid, that though these representations were not incorporated in the deed or in the contract of sale, and were not repeated or alluded to at- the time the contract of sale and purchase was made, S should, in equity, upon M.’s application, be restricted from altering the character of the houses, unless M.’s rights in this respect have been waived.
    The use by S. of the existing easement, a party-wall between the house purchased by M. and S.’s house adjoining, for a purpose antagonistical to the expressed design of S. in building the houses, by which the adjoining house was enlarged, not as a private residence, but for business purposes, may be restrained, though S. would have the right to build upon the party-wall if the object were to enlarge his house as a private residence {Reversing 8. O., 54 Sow., 338; see 8. G., 53 How., 311).
    S. is under no obligation to reform the character of the houses other than the one adjoining M.’s, because the changes made prior to the commencement of the action must be regarded as having been assented to by M., because they were allowed to be thus changed without objection.
    
      First Department, General Term, February, 1881.
    
      Before Beady and Baebett, JJ.
    
    This is an appeal from a judgment entered March 14, 1878, on the decision of justice Van Vobst, dismissing the complaint, which prayed an injunction restraining defendant from increasing the height of a party wall (See 54 How., 338).
    An interlocutory injunction had been issued under an order granted by justice Westbkook (see 53 How., 311), an appeal from which is now pending.
    The cause was tried at a special term in November, 1877. On the trial, in pursuance of section 1023 of the new Code, plaintiff submitted proposed findings of fact and conclusions of law; afterwards defendant did the same. Thereafter the court filed its decision dismissing the complaint, with costs; although it had previously, by its decision on defendant’s proposed statement, and by its opinion, refused costs (See 54 How., 338). Judgment was entered in March, 1878. Plaintiff filed exceptions to the decision.
    From the rulings of the court upon the proposed statement by plaintiff, and from its decision, it appears :
    
      First. That on the 15th of December, 1873, defendant being the owner of four dwellings on the east side of Fifth avenue, extending north from Forty-fourth street, 100 feet deep, and fronting on the avenue; and also of a lot adjoining said premises in the rear, fronting on Forty-fourth street, and extending northerly 105 feet, conveyed to plaintiff the premises' described in the complaint, being the third dwelling from Forty-fourth street.
    The dwelling covered the entire front of the lot. The main portion was sixty-six feet deep, and four stories above the basement, with an extension of twenty-seven feet in depth, fourteen feet nine inches wide, and about twenty-seven feet in height, located on the northerly line of the lot. The deed to plaintiff bounded her on the north and south by the center of party walls then standing. They were twenty inches thick in the sub-basement and sixteen inches above to the surface, which was covered with tin, a chimney with flues for the connected dwellings extended above the party-wall. The purchase-price was $110,000.
    
      Second. At the time of the deed the said four dwellings 
      “ were completely finished in an elegant and expensive style. They were uniform in arrangement and finish and each of them belonged to the order of first-class private residences in the city of New York.” Since the purchase plaintiff has expended about $70,000 in improving her dwelling. It was purchased for a permanent family home and has been continually so occupied; “ that locality is among the most desirable and costly in the city of New York for that mode of occupation.”
    
      Third. The deed to plaintiff was given in pursuance of a written contract between plaintiff’s husband and defendant, bearing date December 5, 1873. The grants under which defendant derived title contained restrictive covenants, embracing the heirs and assigns of either party, among other things, forbidding the erection or carrying on of “ any tenement-house ” or “ steam-engine,” or “ business or calling noxious or offensive to the neighboring inhabitants.”
    
      Fourth. Prior to the contract of December fifth, while the parties were inspecting the premises, defendant made, in substance, these statements: “ That if they (plaintiff and her husband) purchased the said premises, they would be subject to no nuisances; that there were covenants in the deeds of his own property and the adjacent lots providing against them, and that his remaining houses on Fifth avenue would be occupied as first-class private dwellings.
    Justice Vatt Vobst supposed he had found these facts in his decision filed. He was mistaken. They appear in his opinion. Under section 1023 of the Code, however, the findings upon the statements presented by the respective parties are as effectual and available as if contained in the decision.
    Therefore, the finding of the court in regard to these statements disposes of the question of credibility between the plaintiff and her husband and defendant, raised upon the trial. The admission of the answer is not quite consistent with defendant’s testimony.
    
      Fifth. Plaintiff and her husband, in making the purchase, relied upon these statements, and would not without them have made it. Probably the court did not include the subject of these representations in his decision, because he held them, under his views of the law, immaterial.
    
      Sixth. In 1874, defendant remodeled the interior of his dwellings, south of plaintiff, connecting them with the one on Forty-fourth street, and has since used them as a hotel. “These alterations did not, however, change the external appearance of the buildings.” It aid not appear that any objection to these was made by plaintiff.
    In 1877, defendant intended and commenced to erect on his said two dwellings two additional stories for the same business. “ In making such addition, the defendant intended to place the north side of said addition upon the party-wall, and for that purpose to use the whole length and width. * * * “ The said two stories would be inappropriate from their height, but not otherwise, to firtt-class private residences.”
    “ The market value of plaintiff’s house would be diminished and its desirability as a first-class private residence lessened, by its proximity to the defendant’s houses when enlarged and devoted to the business of a hotel.”
    
      Seventh. Plaintiff “ has not, in fact, licensed, consented or agreed to the defendant’s additions to his two houses, nor the contemplated use thereof, as enlarged, nor to the use or occupation of the party-wall for the purposes intended.” Such changes were not contemplated by defendant, or anticipated at the time of the deed to plaintiff.
    The answer admits the eighth paragraph of the complaint, which charges that defendant threatens and intends, in making the additions to his buildings, “ to use the whole length and width thereof,” &c. The court so finds. By its refusal to find the first ruling of law proposed by plaintiff, and by its decision, the court affirms the legal proposition, that, although plaintiff owns in severalty to the center of the party-wall, defendant has the legal right to occupy the whole bf it with the twe additional stories, plaintiff never having “licensed, assented or agreed ” to such uses.
    
      Aside from the exceptions appearing upon the record, the case seems to present three elementary questions.
    
      First. Whether defendant, against the protest of plaintiff, can increase the height of the party-wall in the manner threatened.
    
      Second. Whether the verbal representations of defendant concerning the future use of his dwellings, cotemporaneous with the deed -to plaintiff, create an estoppel m pais against his intended occupation of the two additional stories as a family hotel.
    
      Third. Whether the covenants running with his title forbid the threatened erections and their use as proposed.
    
      W. A. Beach, for plaintiff, appellant.
    I. The maxim “ he who owns the soil, has it even to the sky, and to the lowest depths,” affirms the title of the plaintiff to the space above the party-wall in question north of its center. (Auburn Road agt. Douglass, 9 N. Y., 446). The proposition is not disputed. It is a necessary corollary that neither of the proprietors of a party-wall, standing upon the soil of each, has power to increase its dimensions so as to encroach upon the title of the other, without license. First. It would seem that this proposition ought to be accepted as a postulate. By the agreement for a party-wall, whether express, or implied from its erection, the respective owners acquire an easement in the land of each other. The extent of it must necessarily be defined in some manner. It cannot he unstable and mutable in accommodation of the caprice, or wants of one, against the will of the other. The absolute right of property cannot be unstable and shifting, nor can it be compulsorily invaded. This plaintiff cannot he constitutionally deprived of hers, but by her own volition, or due process of law. It cannot be denied that an erection placed upon the entire surface of the party-wall against plaintiff’s protest would be an invasion of her property. The right to do so is claimed under the easement springing from its existence. No express agreement in regard to it is pretended. The position is, that the party-wall existing, either owner may enlarge-it indefinitely upon the 'land of the other, without consent. From whence the right thus to appropriate plaintiff’s property is derived, is not apparent, tihe must have licensed it in some form — either expressly or by implication, or it must follow that the mere erection of a party-wall implies a license, expanding with the wants and wishes of either proprietor. It is supposed that the case of Brooks agt. Curtis (50 N. Y., 639), sustains this theory. The distinctions between Brooks agt. Curtis, and the present case are obvious and .radical. 1st. Here, the party-wall was finished and perfect at the time of the conveyance to plaintiff. Its dimensions and character were thereby definitely established by the concurrence of the parties. The then condition of the party-wall, in the absence of all qualifying circumstances, was a practical definition of the easement. 2d. It was not situated in a business region, or designed for business use, but was intended for and devoted to the use of private dwellings. They were of a character rejecting any intendment of contemplated change. 3d. If any such intention could -be otherwise imputed, it is conclusively rejected both by the positive oaths of the plaintiff and her husband, by the assurances of the defendant at the time of the grant to plaintiff, and by the finding of the court below.
    
      Second. The doctrine of Brooks agt. Curtis must, therefore, be considered as referring the rights and powers of parties over a party-wall to their intention in its creation as expressed or implied from circumstances. No one will be likely to affirm that building a party-wall by adjoining proprietors confers the right, per se, upon either to enlarge it at pleasure upon the premises of the other. It is a burden upon the land. It must be lawfully there by grant or prescription or user. The conceded rule of Brooks agt. Curtis, by which rights in reality are conveyed by implied intention, is sufficiently vague and shadowy. It goes fair beyond the recognized doctrine of implied grant, which applies only to established conditions. Brooks agt. Curtis substantially creates by intention a future easement. ■ The intention cannot be found in this case. On the contrary, it is repudiated by every appropriate consideration and by the finding of the court. It was error, therefore, to consider the rights of these parties, decisively adjudged by Brooks agt. Ourtis.
    
    
      Third. It is a familiar rule that parties to a grant “are presumed to contract in reference to the condition of the property at the time of the sale.” Lampman agt. Wilks (21 N. Y., 505, 507) applied here it follows, as declared by the same authority, that defendant had no right “ by altering arrangements then openly existing, to change materially the relative value” of the property conveyed by him to plaintiff.
    
      Fourth. In Outhank agt. Lake Shore and Michigan Southern Railroad (71 N. Y., 194) the court of appeals announce several rules applicable to this case. There the plaintiff granted to the railroad company the right to lay pipes over his land to conduct water from a contemplated reservoir on the land of a third party. The right granted was subsequently located by laying the pipe. The court held that the grantee had no right to enter upon the land to lay down a larger pipe. The principle of the case is applicable when the easement is existing in perfect condition at the time of the grant. If an indefinite and unlimited easement becomes fixed and unalterable by location and acquiescence, it must be unchangeable where it is perfect when granted; unless, according to Brooks agt. Curtis, there is something in its condition or locality, or the purpose to which it is appropriated to indicate the intention of the parties that it may be extended. In its opinion the court adopt this expression in Jennison agt. Walker (11 Gray, 423): “ This rule rests on the principle that where the terms of a grant are general or indefinite so that its construction is uncertain and ambiguous, the acts of the parties contemporaneous with the grant giving a practical construction to it shall be deemed to be a just exposition of the intent of the parties.” So, likewise, a practical construction, expressive of the intent of the parties, is found in the act of granting and accepting land on which an easement exists complete, and perfectly adapted to its designed use (See Marion agt. Johnston, 23 Louisiana, 597).
    II. The proven representations and promises of the defendant, through which he induced the plaintiff to purchase, constitute a perfect estoppel against his threatened acts to plaintiff’s injury. He represented and promised that his two dwellings should be occupied only as private residences. Plaintiff relied upon these and would not have purchased otherwise. Defendant threatens to violate them to her injury. He concedes that he intends to alter his buildings in structure and appearance, destroying their character as private residences. He admits his purpose to apply them to a use detracting from the privacy and convenience of plaintiff’s premises. That the establishment he contemplates would be a serious annoyance is most manifest, not only from the undenied charges of the complaint, but from the known nature and incidents of the business. Every one knows that a public hotel, with its inevitable incidentsof unceasing tumult and offensive vapors, and noisy publicity, is destructive of the comfort and privacy of a house, such as plaintiff’s was designed to be, and 'as defendant promised his should be. The court so finds. These are the essential elements of an' estoppel in pais (Welland Canal agt. Hathaway, 8 Wend., 480; Continental Bk. agt. Bk. Commonwealth, 50 N. Y., 575, 581; Dezell agt. Odell, 3 Hill, 215). The estoppel operates in two directions. It prohibits any substantial alteration of the party-wall, by which the character of the buildings as “ first-class private residences ” would be essentially changed, and it forbids their occupation for any other use injuriously to plaintiff. It may be, so far \is the estoppel is concerned, that defendant might alter the internal arrangement of his dwellings and multiply his household with boarders, if plaintiff sustain no essential injury. Their exterior would be unchanged. Their appearance would still be uniform with plaintiff’s and that of choice private residences. Ho injury to plaintiff would necessarily follow. But the proposed additions threaten radical change in the character of the property, to the obvious injury of plaintiff, and are a wanton breach of good faith and defendant’s promises. She might endure measurable discomfort in preference to disagreeable litigation; but her patience is no apology for continuous and. dishonorable exaction. The circumstance that plaintiff did not actively resist the interior alterations made in defendant’s dwellings in 1874, 1875, has been embodied in the decision of the court below. Its pertinency is not perceived. It is not supposed that by the finding it was intended to intimate, either that plaintiff was thereby estopped nor that defendant did not promise. The last is found by the court and the first is decided otherwise (Lottimer agt. Livermore, 6 Daly, 501; modified by court of appeals, 72 N. Y., 174). Plaintiff is probably concluded from objecting to the changes in the interior arrangement and use of defendant’s dwellings prior to this action, but her acquiescence does not conclude her from resisting other and more offensive encroachments on her property right.
    III. It is urged, and the court below so concluded, that these statements of defendant inducing the acceptance of his grant, cannot be deemed an equitable estoppel, because they are not expressed in the conveyance and are promissory in character. First. It may be granted that an easement, affirmative or negative, cannot be created by parol, although in The Trustees of Columbia College agt. Lynch (70 N. Y., 440), the court of appeals are understood to have held, that a parol agreement for an easement may be enforced in equity. But conceding otherwise, and that the consequence of plaintiff’s contention should be that she would acquire a negative easement, if successful! the rule would not apply. She does not claim on the ground of grant, and need not on the ground of contract. She does not, principally, demand the enjoyment of an easement. Threatened with severe injury to her property she appeals to equity to restrain defendant from committing it, because, in good faith, he ought not 'to do it. His engagement was that he would not. Plaintiff trusted to his promises, invested nearly $200,000 upon the faith of it, and will be grievously damaged if defendant is permitted to violate it. Holding him to the redemption of his pledged faith, in protection of rights acquired from him in reliance upon it, is no transgression of the doctrine that an easement must be created by deed. The two principles are distinct and independent. They rest upon different sources, springing from different considerations. The one is a doctrine of law, the other a rule of equity. The one regulates legal fight, the other moral duty. Equity interposes where the law fails to enforce justice and good faith. It is absurd to say, that because the law declares an easement ’cannot be created by parol, therefore a grantor may deceive and mislead and wrong a purchaser from him with impunity. Just now the argument does not involve the inquiry whether the representation is promissory, because if the law rule controls it applies equally, whether the falsehood relates to future conduct or existing fact. Plaintiff insists that an equitable estoppel may be founded upon a verbal promise (other constituents being shown), whether it relates to an easement or any other right in realty, or to a matter transferable by parol. The only ingredients are statements—however made — reliance, threatened violation in bad faith, and resulting injury to the party deceived. Second. Numerous examples of estoppel by parol illustrate and sustain plaintiff’s position. It does not require even words to create it. It may arise from acts, or silence and inaction. The right to flow the land of another (being an affirmative easement) may be gained by use short of twenty years, with knowledge of the owner without objection, on the ground of estoppel (Brown agt. Brown, 30 N. Y., 519, 541). The real owner of land is estopped from asserting his title by silently allowing another to purchase it from a third person (Town agt. Needham, 3 Paige, 545; Cheny agt. Arnold, 18 
      Barb., 436). Parol agreements, establishing an erroneous line between adjoining owners of realty, acted upon and improvements made, estop from insisting upon the true boundary. It does not operate as a -transfer, but by way of estoppel (Vosburgh agt. Teator, 32 N. Y., 561; Corkhill agt. Landers, 44 Barb., 418; 16 Hun, 50). It would be a remarkable discrimination if title to realty could be acquired through an equitable estoppel, and an easement could not be. Talmage agt. East River Bank (26 N. Y., 105), would seem to be decisive of the point. Greenwalt agt. Myers (85 Penn. St. R., 369), recently decided in the highest court of Pennsylvania, Shaeswood, J., delivering the opinion, is instructive. The syllabus is thus given: “ Parol evidence is admissible to show that a written contract was executed on the faith of a stipulation, condition or parol promise, made at the time of such execution, although it may vary and materially change the terms of the written contract.” The case shows parol representations entirely promissory, connected with the sale of land. Keates agt. Lyon (L. R., 4 Chy. Appeal Cases, 218, 222, 223), supports this reasoning (See, also Pierce agt. Woodward, 6 Pick., 206; Morgan agt. Griffith, L. R., 6 Exch., 70).
    
      Thvrd. Aside from all authorities applying the doctrine of estoppel in pais it is insisted that the established definition of the term proves its applicability to the facts in proof. • It rests upon a fundamental principle of right and justice. This case invokes the principle. If no exact precedent could be found equity, nevertheless, would discover the wrong and apply an efficient remedy. “No man shall found a right upon his own wrong.” No sound reason can be given why defendant should not be held to his representations and promises; that they were made is settled by the finding of the court; that they were in good faith relied upon by plaintiff is also found ; that plaintiff will suffer severely if defendant be permitted to act dishonestly is likewise certified by the court. Why should he be allowed to commit a wrong act to plaintiff’s injury ? He offers no excuse, of mistake or surprise or change of circumstance palliating his iniquity. He is a bold wrong doer. He denies what the court was forced to find as true, and rests his wrong upon technical legal rule. Plaintiff insists that rigorous law condemns him; but he is in equity before a court of - conscience which binds him to honesty and good faith. Ho rule of public policy withholds the application to him of equitable doctrine. Multiplied precedents sanction it. Justice imperatively requires it. His false denial being exposed; his rash and reckless pursuit of his own interest, to the sacrifice of plaintiff’s property and his own honor, demonstrating his want of principle and faith appearing, why should equity shield him with the gauze of technicality (2 Parsons on Cont., 793 [6th ed.]; cases cited under point II; Payne agt. Burnham, 62 N. Y., 69, 73; Continental Bk. agt. Bk. Commonwealth, 50 id., 581, 582)? In Life Insurance Co. agt. Mowry (6 Otto, 544) justice Field, delivering the opinion of the court, says : “ The doctrine of estoppel is applied with respect to representations of a party to prevent their operating as a fraud upon one who has been led to rely upon them. They would have that effect if a party who, by his statements as to matters of fact or as to his intended abandonment of existing rights, has designedly induced another to change his conduct, or alter his condition in reliance upon them, could be permitted to deny the truth of his statements or enforce his rights against his declared intention of abandonment.”
    
      Fourth. The authorities cited above effectually answer the point made by counsel below that the promise of defendant was contradictory to the contract and deed, and merged in them. Defendant’s representations do not conflict with any written instrument. They were entirely collateral to his deed to plaintiff, and would have been out of place in it. They were not a burden upon the land it conveyed. They were personal to the plaintiff, addressed to her as inducements to purchase. Whether or not they created a negative easement need not be discussed. At all events, they were not pertinent to anything in the deed, and were neither contradictory of or merged in it (Farley agt. Farrell, 51 How., 49 ; Potter agt. Hopkins, 25 Wend., 417; Batterman agt. Pierce, 3 Hill, 171; Remington agt. Palmer, 62 N. Y., 31). Fifth. The court below relied upon White agt. Ashton (51 N. Y., 280), as maintained “ that the doctrine of equitable estoppel does not apply to a promise to be fulfilled in the future.” If so it cannot be reconciled with Talmage agt. The East River Bank (26 N. Y., 105), nor with The Trustees of Columbia College agt. Lynch (70 N. Y., 440). Indeed, it stands in conflict, in text or in principle with all the authorities above cited on the question. There is, however, no such conflict. The question of equitable estoppel did not legitimately arise in White agt. Ashton. Sixth. It was hastily suggested below that the statute relative to conveyances of land forbidding the creation of estates or interests in land “ except by deed or written instrument,” was an answer to plaintiff’s argument. The suggestion overlooked the concluding paragraph of the statute permitting their creation “ by act or operation of law.” The term “ act of law ” is defined to be “ those events which occur in consequence of some principle of law.” An equitable estoppel is within the definition.
    IY. The covenants contained in the grants, through which defendant deduces title, prohibit both the alterations in his buildings he admits his intention to make, and the use to which he confesses his purpose to apply them. So far as useful here, they are against erecting or carrying on upon the premises any “ tenement-house,” “ steam-engine,” “ business or calling noxious or offensive to the neighboring inhabitants.” The deed to defendant is expressly subject to these covenants. First. Had there been no reference in the deed under which plaintiff claims title to the covenants in precedent conveyances, they would operate upon him, and plaintiff, although her grant is silent, could claim their benefit (Trustees, &c., agt. White, 4 Paige, 510; Barrow agt. Richard, 8 id., 351; Phœnix Co. agt. Continental Co., 14 Abbt. [N. S.], 266; Gilbert agt. Peteler, 38 N. Y., 165 ; Atlantic Co. agt. Libby, 45 id., 499 ; 
      The Same agt. Leavite, 54 id., 35, 444; Clark agt. New York Life Co., 64 N. Y., 33; Brown agt. McKea, 57 id., 684). Second. The buildings of defendant with the additions and changes he threatens and has made, would form a “ tenement-house ” within the sense of the covenant. Third. Any hesitation concerning the character of defendant’s proposed establishment is avoided by the concluding clause of the covenant interdicting any “ business or calling noxious or offensive to the neighboring inhabitants.” That it will be offensive is substantially admitted. As matter of common knowledge it will be so. The court in effect finds it. This branch of the covenant, without aid from other members, condemns defendant’s threatened addition, and entitles plaintiff to the relief demanded (See justice Westbrook’s opinion, 53 How. 311). Fourth. The doctrine of merger advanced by defendant has no application. The case cited of Keates agt. Lyon (L. R., 4 Ch. App. Cases), is not parallel. There the original grantor, in whose favor the restrictive covenants ran, subsequently became the owner of all the property to which they applied. He afterwards conveyed, and it was made a question of fact whether he intended to perpetuate the covenants. Here, defendant did not create the restrictions. He bought subject to them and cannot remit them. He did not become the owner of all the land upon which they operated, and cannot therefore extinguish them. But the point is decisively answered by the force of his representations and promises. These evinced an intention to continue the covenants. As to the plaintiff, at least, he cannnot deny their existence.
    Y. The jurisdiction of equity in a case like the present was denied in the court below. The cases cited under point IY, sub: First, affirm the jurisdiction of equity in cases like the present. Trustees of Columbia College agt. Lynch (7 J. & S., 372), is reversed in the court of appeals (70 N. Y., 440), by a recent decision unreported, the court affirming the appropriateness of the remedy by injunction. Justice Story maintains the same doctrine (2 Story's Eg., secs. 925, 926, 927, &c.). It is not deemed necessary further to discuss this proposition.
    VI. It is not needful to review the English authorities relating to party-walls. They are mostly inappropriate, inasmuch as they treat the proprietors as tenants in common. With us the title is in severalty (Nast agt. Kemp, 49 How., 522, affirmed at general term; Partridge agt. Gilbert, 15 N. Y., 601; Shankland’s opinion; Hendricks agt. Starks, 37 id., 109; Sherred agt. Cisco, 4 Sand., 480; Brown agt. Pentz, 1 How. Ap. Ca., 227, McCoun’s opinion, p. 231; Brooks agt. Curtis, 50 N. Y., 639-642). It may not be useless to subjoin brief references to the English cases (Matts agt. Hawkins, 5 Taunton, 20 S. C., En. Com. L., 4). One owner raised the party-wall; the other pulled it down. Court held, latter was liable in trespass for injury to the part standing on the former’s land. By implication the case holds defendant was not liable for removing the portion on his own side. And that is a denial of the right of either to build over his line (Cubbitt agt. Porter, 8 Barn. & Cress., 257; S. C., 15 Com. L., 211). In this case the party-wall was pulled down and built higher. Court held, trespass would not lie, but Baxley, J., said if the wall was built higher than it ought to have been, the injured party might remove it. The case was decided upon the technical rule that a tenant in common could not maintain trespass against his co-tenant. But the implication from it is that it was wrongful to increase the height, otherwise its removal would have been tortious. Stedman agt. Smith (8 Ellis & Blackburn, 1; S. C., 92 Com. L., 1) is a strong authority, and seems to have escaped observation. Defendant’s stable roof rested on the whole width of a party-wall. He took down stable, removed coping stones from top of wall, raised it higher, replaced coping stones and erected a wash-house, resting the roof on the whole width of wall. On the trial the jury found the wall belonged in common to the. parties. Whereupon verdict was directed for defendant, on the ground that no ouster had been shown. New trial granted, the court holding that there was enough to go to the jury on the question of ouster. The opinions show that any substantial change in the wall, depriving one of any use to which he was entitled, gave a right of action even as between tenants in common.
    
      A. J. Yanderjpoel and H. B. Turner, for defendant, respondent.
    I. The defendant cannot be enjoined from improving his property as proposed by him in consequence of any promise made by him to the plaintiff, or any conversations had by him with the plaintiff on the subject. In Clark agt. New York Life Ins. Co. (64 N. Y., 33), at page 40, he says: “ It is sought seriously to interfere with the right of property in that lot, and to justify such interference requires something more than .a doubtful right. If the true construction of the contract is doubtful, as perhaps it should be regarded, the plaintiff must fail. A reasonably clear case should be made before the.rights of an owner of property should be impaired to the extent claimed.” It is not to be supposed that either party, when conversing in anticipation of a bargain which was to be reduced to writing, supposed he was creating a permanent incumbrance on his lot or limitation or hindrance to its appropriation to other uses, if the changing necessities of the city require it (Hieatt agt. Morris, 10 Ohio State Rep. 530). The allegations of the complaint in this regard would constitute no ground for the relief demanded, even if they had been proved, {a.) If any such promise, &c., was made, it was merged in the written contract between the parties, the deed to which they were preliminary, which is the only evidence of a final agreement between the parties. Any other rule would obviate the necessity of inserting covenants in a deed (Schermerhorn agt. Vanderheyden, 1 Johnson, 139; Drew agt. Swift, 47 N. Y., 208, 209 ; Renard agt. Garrison, 12 N. Y., 561; White agt. Ashton, 51 N. Y., 280). (b.) Any such agreement not being contained in the deed, but being confessedly parol, is void under the statute. “Ho estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter he created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing ” (2 R. 8., 134, seo. 6). “A contract void by statute, is void for all purposes. It confers no right and creates no obligation as between the parties to it, * * * it cannot be enforced directly or indirectly. The plain intent of the statute is that no person shall be subjected to any liability upon an agreement. * * * There is no contract from the violation of which damages in a legal sense can arise where the agreement proved is within the statute ” (Dung agt. Parker, 52 N. Y., 494). (c.) The alleged agreement, if made, was part of the contract of purchase or a separate contract. If the former, the deed is the sole evidence of it, or it is void under the statute ; but if it is a separate contract it is void for want of consideration. The provisions of the contract not required to be in writing cannot be separated from those which must be in writing, so as to support an action, unless there be a separate and distinct consideration. “ While both rest upon the same consideration the provisions are inseparable and void ” (Dow agt. Way, 64 Barb., 259; Farley agt. Farley, 51 Howard Pr., 479). The plaintiff claims nothing less than an easement in the defendant’s land. A negative easement or servitude is defined to be “ where the owner of the servient estate is prohibited from doing something otherwise lawful on his estate because it will affect the dominant estate ” (Washburn on Easements, 301, sec. 5, book 2, marg. 26; Columbia College agt. Lynch, 70 N. Y., 440). How an easement can be created only by grant or prescription.
    An easement by grant requires a deed; it cannot be created by parol (Washburn on Easements, 303, marg. 28; Mumford 
      agt. Whitney, 15 Wend., 380). Indeed it is not strictly correct to say that an easement can he created by prescription. A title by prescription implies a lost grant, and after lapse of a long time a grant is conclusively presumed. It is a matter of evidence only. An easement may be implied in a grant, but it depends upon the grant and cannot be created by parol. These are fundamental principles, and unless they are disregarded the plaintiff’s claim cannot be sustained. Hor can the plaintiff be aided upon the theory of an estoppel in fans. An estoppel in fais can only be founded upon an assent to, or admission of, some fact or the doing of some act. A promise to act is insufficient, and the doctrine cannot be invoked to subvert the principle that prior or cotemporaneous agreements are absorbed in a written contract ” (White agt. Ashton, 51 N. Y., 280; Springsteen agt. Powers, 3 Robertson, 483 ; Shapley agt. Abbott, 42 N. Y., 443).
    But the plaintiff’s counsel contends that the rule expressed in the head note of White agt. Ashton is only the language of the reporter and not warranted by the case. It will’ be found, however, that such is not the fact. It is surprising to us that at this day a contrary doctrine can be contended for. The opinion of judge Hunt is clear and distinct, but to obviate all questions we cite the following cases: Langdon agt. Doud (10 Allen, 433), Brightman agt. Hicks (108 Mass., 246), Shapley agt. Abbott (42 N. Y., 457).
    Ho case can be found in which the courts have sustained negative easements created by parol, in which the grand element of mutuality was lacking.
    The defendant quotes Tallmadge agt. East River Bank (26 N. Y., 105). The facts of this case are more fully stated under the head of Maxwell agt. East River Bank (in 3 Bosworth, 124), which is the same case. The views of judge Bosworth in affirming the judgment of the special term, were affirmed by the court of appeals.
    Again, in the case of Columbia College agt. Lynch (70 N. Y., 440), it is very clearly shown that such cases turn on the mutuality of the agreements of the parties as to their property, and the mutual execution. Judge Allen refers to the subject as “ reciprocal easements.”
    II. The action of the defendant in no wise violates the covenant against nuisances contained in the deed of Cowdrey, referee, under which the defendant claims title.
    1. As between the plaintiff and defendant the covenant was extinguished.
    By the decree in the suit of Fair agt. Ireland in 1866, William L. Cowdrey was appointed referee to sell a large number of lots, including the land on which the houses of both plaintiff and defendant stand. The deeds were'made to the several purchasers, subject to the covenant above recited, the various purchasers covenanting with each other and with their grantor. In time the defendant acquired under these deeds a plot of land at the corner of Fifth avenue and Forty-fourth street, being the lands now owned by the plaintiff and by the defendant. Manifestly the right that the grantees of these particular lots from the referee had to enforce this covenant, as against each other, was gone by the union of the title in one person (See Keates agt. Lyon, L. R., 4 Chy. App., 218). Suppose the defendant had acquired all the lots covered by the judgment, and sold by the referee’s deed, and had conveyed half of them by deed, without the covenant, to other -persons, it would hardly be claimed that the covenant revived, and that the grantees had a right to enforce against then- grantor a covenant which he could not enforce against them. It would be clear that having acquired the entire land, and having conveyed part by deeds, without the covenant, his intention was that the land should be free from any restrictive covenants. In precisely the same way it is clear that the defendant intended, when he conveyed to the plaintiff by full covenant deed, without the covenant in question, that the lots which he had acquired should be, as between themselves,- free from the operation of the restrictive covenant. Of course, the rights of the owners of the other lots conveyed by the referee to enforce the covenants against both plaintiff and defendant are not now in question (Parsons agt. Johnson, Ct. Com. Pleas, January, 1877, 4 Weekly Digest, 228). 2. Even if this covenant existed between the parties there is nothing in the covenant itself authorizing the injunction sought for by the plaintiff. Such a covenant being in derogation of the estate must be strictly construed and will not be favored by the courts. Examples can be multiplied where covenants of this character have received the strictest construction so as to lessen as far as possible the restriction upon the free use of the servient lands. The following cases illustrate the principle: Pease agt. Coats (L. R., 2 Eq., 688), London & N. W. R. R. agt. Garnett (L. R., 9 Eq., 26), Jones agt. Bone (L. R., 2 Eq., 674), Haverstich agt. Sipe (33 Penn., 369, 371), Turner agt. Evans (2 Ellis. & Bl., 518), Schenck agt. Campbell (11 Abb. Pr., 292).
    III. The defendant has not trespassed upon the rights of the plaintiff in any way by building upon the party-wall standing between his premises and those of the plaintiff. 1. The defendant has an unquestionable right to build on that portion of the party-wall which remained his own property after the sale of the adjoining house to tlm plaintiff.
    Each of the parties is the owner of one-half of this wall in severalty, subject, however, to the easement of support of the other party therein (Washburn, Easements, 454, 455; Sherred agt. Cisco, 4 Sandf., 480).
    2. Hot only has the defendant the right to build upon his own half of the wall, but he has the still further right to .increase the height of the entire wall, as an incident to. the easement (Brooks agt. Curtis, 50 N. Y., 639, 641; Watts agt. Hawkins, 5 Taunton, 20; Partridge agt. Gilbert, 15 N. Y., 601; Clark agt. N. Y. Ins. Co., 64 N. Y., 33).
    Y. The findings of the court on the conclusions of fact and law embrace every question material to the issues in this action.
    YI. There was no error in the court declining to adopt the statement of facts and conclusions of law proposed on the part of plaintiff.
    YII. The judgment of the court below should be in all respects affirmed, with costs of appeal to the defendant.
   Brady, J.

The questions presented by this appeal have been the subject of elaborate investigation and of numerous consultations between myself and associate, justice Babbett. We approached the consideration of them impressed with their importance and the results which might attend our conclusions. This deliberate and careful examination has led, however, to the conclusion that upon all of them except one, and those incidental to or necessarily connected with it, the conclusions arrived at in the special term were correct.

The learned justice who presided in the court below has expressed his views in an extended and able opinion, and we adopt them as a forcible exposition of the law in this case, with the single exception to which we shall presently refer. We do not consider it necessary, therefore, to make any further allusion to them, and proceed at once to the consideration of the question about which we think he has erred.

The evidence shows that, prior to the purchase of the premises by the plaintiff, there were interviews between her, her husband and the defendant in regard to them, in which certain statements and representations were made as to the character of the houses, of which her purchase was one, and their then present and future use. It appears from the find•ings of the learned judge that these representations were made, although denied by the defendant, and that they, in fact, influenced the plaintiff in purchasing the house bought by her.

The testimony of the plaintiff on this subject is as follows:

Q. At either of those conversations do you recollect any statements or declarations by Mr. Sherwood in regard to the occupation of his remaining buildings ? A. Perfectly.

Q. And are you able to designate at which of the conversations that occurred ? A. FTo; I can’t designate at which one, because before we had positively gone that far we had had a good many conversations; had looked through the house several times, I remember.

Q. Will you now state what those representations or statements of Mr. Sherwood, to which you allude, were? A. I remember perfectly, on one occasion — which conversation I can’t remember — we were going through the lower rooms of the house; Mr. Sherwood had a cane in his hand, and he was constantly knocking the plate glass to show the superiority of the glass, and also to examine the woodwork of the house. We came to the rear room of the house; the outlook was not very pleasant, as one of the lots on the north side was not cultivated at all or built upon, and I said to Mr. Sherwood, “ This does not look very prepossessing,” and he said, “ Well, there will be nothing upon it that will be disagreeable, because all the property around these buildings are under restrictions; nothing that is objectionable can be built; I myself am restricted from putting anything but first-class private residences on this property, and they will always be, first and last, private residences.

Q. What influence did that declaration of Mr. .Sherwood, in regard to his buildings being always, first and last, private dwellings, have upon your proposed purchase ? A. It had a great influence upon me. It was upon that that we bought, knowing that the two houses on Fifth avenue were all finished, and the one on Forty-fourth street nearly completed, which he told me would be his own private residence.

Q. Would you have made the purchase of this house without those statements and representations? A. FTo, sir; I should have seriously objected to it. I should not have bought.

And we regard the learned justice as having found this, because, in answer to the application of the defendant to make one finding involving this element, he says: “As a whole I decline to find this proposition ; ” but in reference to the contract of sale, says as follows : “ In my decision, filed herewith, I have stated, as my conclusion upon the evidence, that on one occasion, in. the earlier stages of the negotiations and anterior to the contract of the fifth of December, in an interview between the parties while inspecting the premises, the defendant, in response to a remark made by the plaintiff in regard to other property, made certain statements, which are stated in my decision, as well as the circumstances under which they were made. The statements were, however, in substance as those stated in this proposition. But I do not attach to them the character of formal representations or promises made to induce the purchase. Ho agreement of the parties was then reached. And in view of what afterwards transpired between the parties in coming to an agreement, and of the contents of the contract and deed, I do not regard these statements as material. The defendant and her husband have, however, both testified that they relied on those statements in making the purchase, and would not without them have made it. I accept their evidence as to the influence of these statements upon them, but I do not think the facts and circumstances justify such reliance, as I have stated my opinion.”

It also appears that, at the time these representations were made, four houses on Fifth avenue, including the plaintiff’s, were finished, and one in Forty-fourth street, forming a part of the defendant’s plot of land, was nearly completed ; so that the representations were made as to existing things, to facts accomplished, namely, houses completed and one in process of erection and nearly completed, and all of which were necessarily of the character named, because, as the defendant said, he was restricted from erecting other than first-class private residences on the property.

The learned justice, while accepting the evidence of the plaintiff and her husband in reference to the representations referred to, did not deem the facts and circumstances embraced in them as sufficient to justify a reliance upon them, but regarded them as having no legal vitality, substantially for the reason that they were not incorporated in the deed or in the contract of sale, and were not repeated or alluded to at the time the contract of sale and purchase was made. It appears further that, after 'the representations were uttered, and while negotiations were pending, an offer was made by the defendant to accept $120,000 for the house, which elicited an offer for it on the part of the plaintiff of $110,000, and that offer being accepted, the defendant drew the contract, he and the plaintiff’s .husband uniting their efforts to accomplish that end, and the contract thus prepared by them was copied and executed, each one taking a counterpart.

It is true that no reference was made to the houses in the respect embraced in the representations made in the earlier negotiations for the purchase, and that nothing was said about them at the time the contract was prepared and executed, according to the testimony. They were neither repeated, nor withdrawn or modified, and therefore whatever impressions were formed were allowed to remain. But it appears from the evidence, and is regarded by us as having been substantially found by Mr. justice Vah" Vobst, that the representations and statements mentioned were the inducing cause of the purchase, one of which, as we have seen, and a very important one, was the restriction by which the defendant declared himself to be controlled as to the use of the land. The location of the property, the character of the houses as erected, and the price paid by the plaintiff for the one that she purchased, all have an 'important bearing not only upon the question whether or not the representations were made, but upon their influence in effecting the sale, and tend to fortify the charge that such representations were made and were an inducing cause.

It is evident from the testimony that the plaintiff was purchasing what she regarded as a first-class residence, in a desirable locality, the character of which was secured by restrictions to the extent stated, and her testimony is that it was bought as a private residence and as a permanent home. The inference justly to be drawn from the facts — namely, the locality and character of the house and its surroundings and the consideration paid for it — was that the plaintiff was paying for the special privileges arising from the fact that it was, and the defendant’s houses adjoining it were, by restrictions, stated to be private residences, in the language of the plaintiff “ always, first and last,” as declared to her by the defendant himself.

Assuming, as we must, .from the views expressed by the learned judge, that the defendant made the representations stated by the plaintiff and her husband to have been made prior to the purchase, and that those representations were the inducing cause of the purchase, we do not understand why the defendant should not in equity, on the plaintiff’s application, be restrained from altering the character of the houses which he thus declared, by restrictions in force, were to be and should be, first and last, private residences, unless she has waived her rights in this respect.

The circumstances under which the contract was prepared should not be regarded in equity otherwise than as favorable to the plaintiff, because neither of the parties framing the contract were lawyers, and they prepared it without resort to professional aid, which would probably have developed all the elements necessary for the protection of the plaintiff in reference to the representations made. The defendant in making these representations, which are in their nature promises to some extent, may have gone further in the negotiations than he designed in his zeal to sell his property. But we have nothing to do with that, inasmuch as the court below has determined the issue which we have suggested on that subject in favor of the plaintiff.

These representations having been made and the property having been purchased through the influence which they exercised upon the plaintiff, the defendant has created an obligation which imposes upon him the observance of his representations and promises, relating, as they do, not merely to acts in the future, but as already suggested to an existing state of facts — namely, the construction of houses completed — which in their character, by avowed existing restrictions, were and was to continue to be private residences, and this embraced the use of the easement connected with them. We regard this case, therefore, upon these elements, as one which is governed by the principles enunciated in the case of Tallmade agt. East River Bank (26 N. Y., 105). In that case it was held that the owner of land, as stated in the syllabus of the case, might by parol contract with the purchasers of successive parcels, in respect to the manner of its improvements and occupation, affect the remaining parcels with an equity requiring them also to be occupied in conformity to the general plan, which is. binding upon a subsequent purchaser with notice of the fact, though his legal title be absolute and unrestricted. It was said in that case by Sutherland, J.: “ From the facts found by the judge at special term, it appears that when the plaintiff, Maxwell and others, bought lots in St. Mark’s place, of Davis, they were shown the map or plan of St. Mark’s place, showing that the houses on both sides of the place were to be set back eight feet from the street, and that they bought on the assurance of Davis that that plan should be observed in building on the place; that the strips of eight feet in width on both sides of the street should not be built upon, but kept open. It is to be presumed that they would not have bought and paid their money except on this assurance. It is to be presumed that relying upon this assurance they paid a larger price for the lots than otherwise they would have paid.” This case does not stand alone., In the case of Meyers agt. Watson (1 Simon [N. S.], 523), a case in which the plaintiffs insisted that they were not bound to do anything except what was imposed upon them by the written contract, it was held that a specific performance would not be enforced for the sale of land, even in a case where no actual fraud had been perpetrated to induce the mating of the contract, but where the grantee was induced to enter into the contract in consequence of an independent engagement by which the vendor was to do something which he had failed to perform. The court said: “ Was there any engagement on the part of Potter to do anything which he had failed to do, on the faith of which being done it is reasonable to believe that the defendants entered into the contract in question?” And further, “if the court is satisfied that such an engagement was made, and that on the faith of it defendant entered into the contract now sought to be enforced, if the plaintiff fail to do that which he has undertaken to do, even though it would have been an engagement incapable of being legally enforced, the court would leave the plaintiff to such redress as he would be entitled to at law.” And further, “ when, acting on the faith of representations made as to future acts 'to be done the parties have entered into a contract, it would not be consistent with the doctrines of equity to compel them to perform these contracts at the instance of those who failed to perform engagements which they entered into, and on the faith of which the contracts were made.” And the concluding part of the opinion declares: “ On the whole I am of opinion that it is satisfactorily made out that the vendor induced the defendant to enter into this contract on the assurance that certain things material to their interests should be done by him; and that having failed in performing what he had engaged to do, his assignees are not entitled to relief in this court, so that the bill must be dismissed, with costs.”

In Powers agt. Woodward (6 Pick., 206) it was held also that on the purchase of land parol evidence was admissible to show that the principal inducement to the plaintiff to purchase was a succession to the business which had been carried on in the premises by the grantor, and with which the latter undertook to interfere (See, also, Grenawald agt. Meyer, 38 Penn., 369). It might well be presumed from the evidence that this plaintiff would not have bought the house which she purchased from the defendant and paid the consideration she gave for it, had it not been for the representations made in reference to the houses of which it was one, if it were necessary to provoke any such element; but it is not, because the fact is found that she was induced by them to make the purchase. It is to be presumed, also, that relying upon this assurance the plaintiff paid a larger sum for the property than she would otherwise have paid.

The learned justice, in commenting upon the case of Tallmadge agt. The East River Bank (supra), observes, in his opinion in regard to it, that there is entirely absent from the plaintiff’s claim what was a special feature in Tallmadge’s case, namely, the reciprocal and mutual easement, and, further, that the plaintiff here was placed under no obligation to use her house as a private residence. If, however, the doctrine declared in the case just mentioned is to prevail, and we assume that it is, notice to her of the character of' the defendant’s houses, and the terms upon which they were sold, would be equally controlling upon her as upon Davis in the case (supra), and upon the subsequent purchasers as declared in that case. Indeed, it seems to be quite clear that if the plaintiff had attempted to appropriate her house to purposes inconsistent with the design of the defendant in constructing it and the other houses, she could be prevented, on her statement, by a just application of the rule of law now invoked for her benefit. It must not be forgotten, in the consideration of the question involved, however, that the jdaintiff’s house was built with an easement — a party-wall — and which, consequently, existed at the time of the negotiations for, and the sale of it to the plaintiff, and which was referred to in the conveyance to her. Therefore, as already suggested, it is the use of the existing easement for purposes antagonistical to the expressed design of the defendant in building the houses, made patent by his statements and representations, which is complained of, and by which the house adjoining the plaintiff’s, to the prejudice of her property, as shown by the evidence, was enlarged, not as a private residence, but for business purposes, namely, as part of a family hotel. We do not wish to he understood, however, as declaring it to be our judgment that the defendant would have no right to build upon the party-wall," if the object were to enlarge his house as a private residence. We think the case of Brooks agt. Curtis (50 N. Y., 639) is decisive of that question in. his favor. Such a use might be in perfect harmony with the original design in the structure of the houses and the representation and restriction to which reference has been made. The enlargement of the houses adjoining the plaintiff’s premises was not contemplated with any such intention or- for any such purpose, according to the findings of the learned judge who presided at the trial, but, as already suggested, was for the purpose of affording accommodation for a larger number of guests in the hotel to which the defendant’s houses adjoining had been appropriated.

We do not wish to be understood either as declaring that the defendant is under obligation to reform the character of the houses, other than the one adjoining the plaintiff, because we think that the changes which were made prior to the commencement of this action in the other houses must be regarded as having been assented to or acquiesced in by the plaintiff, because she allowed them to be thus changed without objection, and in equity must bear the consequences of the alterations so made.

Our judgment is, therefore, it appearing that plaintiff did not assent to the use of the party-wall between her and the adjoining premises for the erection of the additional stories which were made for business purposes, her right to protection from such a use by the defendant exists, and in equity and good conscience should be enforced; and that the learned judge at the special term erred in his conclusion of law upon that subject. This view renders the defendant liable to the consequences of his statements and representations discussed, which, as we have seen, induced the plaintiff to purchase.

Note.— The question involved in the foregoing case seems to he a very close and interesting one, and has been closely and sharply contested. The case having gone back for a new trial, and there having been such a diversity of reasoning and comment upon the cases cited, we have given more space than is our custom to the arguments of counsel, believing that in doing so we were conferring a benefit upon the profession.—[Rep.

It follows, therefore, that there must be a new trial, which is ordered, with costs to abide the event.

Barbett, J., concurs.  