
    Edward Mitchell, Respondent, v. Elisabeth Mills Reid, Appellant.
    First Department,
    April 5, 1907.
    Real property—easements in light and air created hy deed—grantees take subject thereto.
    A perpetual easement in light and air when created by deed runs with the land, and the rights and obligations thereof pass to the grantees of the dominant and servient tenements.
    The owner of lands sold a portion in the center of a plot, granting easements in light and air over an adjoining portion specified and reserving the same easements for the benefit of the portion not sold. Thereafter the owner conveyed to the defendant a portion of the lands which included the portion servient to the easement, and also conveyed to the plaintiff other portions entitled to the benefits of said easements, both deeds reciting the existing easements.
    
      Held, that the plaintiff was entitled to an easement in light and air over the portion servient thereto conveyed to the defendant, and that the defendant could not obstruct the light and air hy building upon said portion.
    Appeal by the defendant, Elisabeth Mills Reid, from a portion of a judgment of the Supreme Court in1 favor of the plaintiff, entered in the office of the clerk of the county of Mew York on the 16th day of Movember, 1905, upon the decision of the court rendered after a trial at the Mew York Special Term.
    
      Henry W. SacTcett, for the appellant.
    
      John M. Bowers, for the respondent.
   Ingkaham, J.:

Prior to January 15, 1884, Henry Villard was the owner of a jfiece of land on the east side of Madison avenue, between Fiftieth and Fifty-first streets, in the city of Mew York, and with a depth of 175 feet easterly from Madison avenue. Contemplating the improvement of this property, he had a map of it made, which was dated May 16, 1883, and was filed in the office of the register of the county of Mew York on January 15, 1884, and is as follows: '

■Tips map shows a plot on the northeast corner of Fiftieth street and Madison avenue of sixty feet on Madison avenue, and one hundred feet on Fiftieth street that was marked A; adjoining that on the east was a small strip of land extending from Fiftieth street about five feet in width and twenty-nine feet eight inches in depth marked P ; in the rear of this strip of land there was laid out a plot of seventeen feet nine inches in width and thirty-five feet in depth adjoining plot A, the corner plot on the east marked O; to the north of plot 0 there was a plot of ground thirty-five feet nine inches in width, one hundred and one feet ten inches in depth marked L on the map. There was also laid out a small piece of land at the intersection of the easterly line of 0 and southerly line of L eighteen feet nine inches by ten feet marked N upon the map, and a plot of land fronting on Fiftieth street, seventy-live feet by sixty-four feet eight inches, which was bounded on the west by plots P, O and H, marked M.

There was also laid out upon the plan a plot of land fronting on Madison avenue commencing sixty feet north of Fiftieth street, eighty feet ten inches in width by seventy-three feet two inches in depth which was to be an open court, furnishing an entrance to the houses on'the corner of Fiftieth street and Fifty-first street and Madison avenue and also an entrance to plots L and K on the map, the plans thus indicating certain portions of the property to be covered with buildings and certain other portions to be free of buildings for the benefit of the property adjoining.

Some time in 1883 Millard commenced building a house on the corner of Fiftieth street and Madison avenue now owned by the defendant, and it was nearly completed when A. IT. Holmes purchased plot L upon which Holmes proceeded to build a house which was completed in May, 1884. The conveyance to Holmes was dated the 27th of December, 1883. This conveyance was made before the filing of the map in question, which was not referred to in the description of the property. The premises were described by metes and bounds and an analysis of this deed is essential to the determination of the question here presented.

The property conveyed is described as a certain lot, piece or parcel of land being “ in that certain block of land bounded northerly by Fifty-first street; easterly by Fourth avenue; southerly by Fiftieth street; and westerly by Madison avenue.” The premises conveyed being bounded and described as follows: Beginning at a point on the center line of said block distant seventy-three feet two inches eastvardly from the easterly line of Madison avenue, running thence eastwardly along the center line of the said block one hundred and one feet and ten inches; thence southwardly and parallel with Madison avenue thirty-five feet nine inches; thence westwardly and parallel with the said center line of said block seventy-five feet; thence northwardly parallel with Madison avenue six feet; thence westwardly parallel with the center line of the block twenty-six feet ten inches; and.thence northwardly and parallel with Madison avenue twenty-nine feet nine inches to the point or place of beginning. There was thus conveyed a plot of ground in the middle of the block and with it there was also conveyed “ a perpetual right and easement of light,'air, . prospect, ingress, and egress upon, over and across all that certain parcel of land adjoining and west of the said premises” particularly described by metes and bounds, being the Open courtyard marked B upon the map; which Said parcel. of land last described is to be used in common by the parties hereto and their heirs and assigns and other owners of land adjoining the- same, on the northerly, easterly and southerly sides thereof, as an ornamental court yard and for no other purpose.” There was also granted “ a perpetual right and easement of light, air, prospect, ingress and egress upon, over and across a certain parcel of land and courtyard adjoining and south of the premises' hereby conveyed,”, which was also described by metes and hounds, which was plot O upon the map; and also a right of way and passage five feet in width and seven feet in height above the level of the sidewalk in Fiftieth street, from the courtyard last above described, namely, plot O on the map, to the northerly side of Fiftieth street, the westerly line of said right of way being distant one hundred and one.feet easterly from and parallel with'the easterly line of Madison avenue, together with the right to have and maintain a vault, coal chute and sewer pipes beneath the surface of said last-mentioned courtyard and right of way as the same now are in connection with the dwelling' house erected upon the premises thereby conveyed-. - There was also granted a perpetual easement of light and air over and across that certain parcel of land adjoining the court yard last above described' on the easterly side thereof and adjoining the premises hereby conveyed” and described by metes and bounds, which was plot FT upon the map.

Under this grant Holmes entered into possession of. the premises conveyed to him, with the various easements over the adjoining plots of land secured to him by this conveyance, and which he still continues to hold, occupy and enjoy.

. Villard remained the owner of plots A and M, A being the property upon which he erected his dwelling house and M being the plot of ground to the east seventy-five feet on Fiftieth street by. sixty-four feet eight inches in depth. Subsequent to the conveyance to Holmes, Villard and wife conveyed to William Endicott, Jr., and Horace White, all this block of land, excepting and reserving therefrom the property conveyed to Holmes, and also the property adjoining Holmes on the north, which had been conveyed to Adams, and the easements appurtenant thereto in trust to pay the interest upon mortgages and the taxes and assessments of the property; to carry out and fulfill the existing contracts for the improvement of all the said premises and for the completion of the buildings now in process of construction and completion, so that all of said premises should be free and clear of all liens or claims of mechanics or materialmen or otherwise; to satisfy any indebtedness owing by Villard to a railroad company named, and to pay over the rest, residue and remainder of the said premises to Mrs. Villard, with power to mortgage, lease or otherwise dispose of- or sell at private or public sale for cash or otherwise any part of the said premises.

On the 28tli of January, 1884, by an instrument in which Villard and wife were parties of the first part, Endicott and White as trustees parties of the second part, and Holmes party of the third part, which recited the purchase of this tract of land by Villard with a view to the building upon and division of the same in the manner shown upon a map or survey of the same which had been filed in the office of the register of the city and county of Hew York on the 15th day of January, 1884; that while so seized of the said premises he sold to Holmes in fee simple that portion of the said lands and premises designated in' the said map or survey by the letter L, “ together with certain easements of light, air, prospect, view, passage, way, ingress and egress over portions of the premises laid down in said map of survey and thereon designated as parcels B, H, O, P, as appurtenant to said parcel L ;” that the “said deed to the party of the third part fails to grant and convey an Undivided share or interest in the parcel of land or court yard designated on said map or survey by the letter B and the color Green and also fails to grant and convey the easements of way, passage, ingress and egress over and upon said parcels O and P as sole and exclusive easements as it was the'intent of said parties to said deed should be done. How, therefore, this Indenture witnesseth: That the said parties of the first and second parts for the better fulfilment of the understanding and agreed ment aforesaid and to correct the errors or omissions aforesaid in said last mentioned deed of conveyance * * * have confirmed and hereby do confirm unto the said party of - the third part and to his heirs and assigns forever all and singular the property, premises, rights and easements granted in and by the aforesaid deed of conveyance to said party of the third part and in addition thereto have granted, bargained, sold, conveyed and confirmed, and by these presents do grant, bargain, sell, convey and confirm unto the said party of the third part to his heirs and assigns forever ” the courtyard shown upon the said map by the letter B; and also a “ perpetual, full, unrestricted, sole and exclusive easement and right of way, passage, ingress and egress over and upon said parcel of land designated on said map ór survey by the letter O and the color Indian Ink and every part and parcel thereof, free from the use, control and interference of any person or persons whomsoever but reserving to the owners of parcels A and M on said map or -survey adjoining said parcel 0 on the easterly, and westerly sides thereof easements of light,' air and prospect, from and over the same, as in said deed of conveyance to the party of the third part the same are mentioned or reserved.” The party of the third part, Holmes, then covenanted to keep and maintain the inner courtyard at or near the average level of the sidewalk in Fiftieth street opposite the entrance' to the passage or way designated on said map or survey by the letter P; and also a“ perpetual, full, sole and conclusive easement and right of way, passage, ingress and egress at the grade of the sidewalk in front thereof five feet in width and seven feet in height above said grade over, upon and across said parcel or strip of land designated on said map or survey by the letter P to and from Fiftieth street, free from the use, control or interference of any person or persons whomsoever.”

It is important to consider the easements or rights to which these three parcels, FT, O and P,'had been subjected by these conveyances. The title still remained in "Villard, or Endicott and White, as trustees for Villard; but Holmes had acquired easements appurtenant to the premises acquired by him to which these three parcels of land were subject. It is quite apparent, -both from the plan or survey and from the nature of the buildings that had been erected Upon these premises and the covenants in these deeds, that it was the intention that neither parcels E nor O should be built upon, with the exception of a building upon E which was not to exceed the first story above the parlor floor of the building erected upon the property acquired by Holmes, and that these two pieces of property should be used as open courtyards for the benefit of Holmes’ property and for the two pieces of property retained by the grantors, being plots A and M on the map. Hnder this second Holmes deed the grantors expressly reserved to the owners of parcels A and M on the map or survey adjoining parcel O on the easterly and westerly sides, easements of light, air and prospect from and over the same, and Holmes covenanted to keep and maintain said, inner court O at or near the average level of Fiftieth street. There was thus granted to Holmes easements over plot O and E and at the same time there was reserved as appurtenant to plots A and M the same easements over plot O. These easements thereby became appurtenant to the three pieces of property, A, L and M. The legal title still remained in the grantors, then vested in Endicott and White, as trustees, but that legal title was subject to these easements, one in favor of plot L, one in favor of plot A, and one in favor of plot M. It is quite evident that these were intended to run with the land as'appurtenant to these several plots of land, each of which abutted on plots O and P. So long as plots A and M and the fee of plots E, P and O remained in the same persons they could do as they liked with these plots, subject, of course, to the easements conveyed to Holmes as appurtenant to his property.

A dwelling house had been erected on plot A to which there had been reserved easements over plot O, but no building had been erected on plot M. By a conveyance made on the 9th day of January, 1886, Endicott and White as trustees under the deed of Villard as parties of the first part; The Oregon Railway and navigation Company, the corporation in whose favor the trust existed under such deed, of the second part, and Henry Villard, of the third part, conveyed to Fanny Garrison Villard, wife of the said Henry Villard, the property conveyed to the trustees by the deed of 1883, describing these various parcels of land by metes and bounds according to this map or survey and which included parcels A, M, E, O and P subject to the covenants as to nuisances and buildings contained in two certain conveyances specified with the benefits of and “ subject to the conditions of a certain deed dated the twenty-seventh day of December, 1883, executed by Henry Yillard and Danny Garrison Yillard, his wife, to Ártemas H. Holmes and recorded. * * *; and also with the benefits of and subject to the conditions of a certain other deed bearing date the twenty-eighth day óf January, 1884, executed by said Henry Yillard and others to Artemas H. Holmes and recorded,” etc. Danny Garrison Yillard thus- having become the owner of plots A, M, H, O and P, subject to the easements appurtenant to plot L owned by Holmes, on the 8th day of ¡November, 1886, conveyed to the defendant a plot of land on the northerly side of Piftieth street beginning at the corner formed by Piftieth street and Madison .avenue and extending eastwardly on Piftieth street one hundred and twenty-five feet. This included plot A and part of plot M, one-half of plot H and the whole of plots O. and P, with the following reservation : Reserving herefrom to the owners óf the remaining portions . of. the parcel of land designated by the letter ‘M’ on the certain map of the property of Henry Yillard filed in the office of the register of the county of Hew York, January 15th, 1884, * * * the reservations contained and mentioned in the deed of said. Heniy Yillard and others to Artemas H. Holmes and recorded in Liber 1770 of Conveyances, page 377, in the office of the register aforesaid in relation to the parcel of land designated by the. letter O on said map.” .

This conveyance was subject to the several conditions, covenants, easements, restrictions and obligations contained in the deeds from Yillard and wife to Holmes dated the 27th of December, 1883, so far as the same related to the courtyard fronting on Madison avenue, and to-the easements, covenants and privileges therein contained as to the smaller court yards H and 0 and the passage way P as shown on said map; ” and also to deed made by Yillard and wife and others to Artemas H. Holmes dated January 28,1884, “ so far only ' as the same relates to the said court yard fronting on Madison avenue therein * * * and to'tlie easements, covenants and privileges therein contained as to the smaller court yards H and O, and the passage way P, as shown' on said map.” By this conveyance the title to lots A and M were severed. Defendant became the owner of lot A and the westerly twenty-five feet of lot M, the grantors still retaining the fee of the remaining portion of lot M. There was reserved, however, to the grantor as the owner of the remaining portion of lot M as appurtenant to the portion of lot M retained, the reservation contained and mentioned in the deed from Endicott and White, as trustees of Villard, to Holmes dated the 9th day of January, 1886. As we have seen, what was there reserved to the owners of parcel 31 was an easement of light, air and prospect from and over parcel O, as in the first deed to Holmes the same was mentioned or reserved. ■ How, in the first deed to Holmes there was given a perpetual right and easement of light, air, prospect, ingress and egress upon, over and aci'O.ss parcel 0. The portion of parcel M conveyed to the defendant was, therefore, subject to the easement reserved to the remaining portion of parcel M, that of light, air and prospect over parcel O, and that necessarily subjected the portion of parcel 31 conveyed to the same covenants or easements. What the 'owner of parcel 31 reserved was an easement of light, air and prospect over an interior courtyard laid out in the middle of this block upon which Holmes had an easement of light, air, prospect, ingress and egress, but upon which there had been reserved to parcel 31 an easement of light, air and prospect. That easement being appurtenant to the whole of lot 31, the owner of lot 31 conveyed a portion of it, reserving to the remainder the easement that was appurtenant to the whole of lot 31 so that it became appurtenant to the balance not convoyed.

It seems to me that this reserved an easement over the portion of lot 31 conveyed of light, air and prospect, so that the portion of lot M conveyed could not be used so as to obstruct or interfere in any way with the easement which had become appurtenant to the remainder of lot 31 of a use of plot O for this purpose. Any other construction of this covenant or reservation would necessarily destroy the effect of the reservation. The owner of lot 31 had the right to so use the lot as to maintain an open, unobstructed space between lot 0 and any part of lot 31, and when she conveyed a part of lot 31 with a covenant that the remainder of the lot should have an easement of light, air and prospect over lot O, she reserved to herself a right to use the part of lot 31 conveyed, which became appurtenant to the remainder of lot 31, and to which the portion of lot JM conveyed became subject. She, therefore, has never conveyed the right to obstruct the portion of lot M that she conveyed in such a way as- to prevent the full and free use of the easement that was appurtenant to lot M over lot 0.

The extent of the reservation or easement over this portion of lot M which was conveyed, arises from the deed to the defendant which reserved to the grantor in that deed the right-to subject lot O to the easement that was reserved to lot M in the deed to Holmes, so that the same should become appurtenant to the remainder of lot M that was not conveyed, and thus the’ portion of. lot M that was conveyed became .subject to the right to have the portion of lot M conveyed maintained in-such a condition'and so unobstructed that the portion of lot M reserved could enjoy the benefits of light, air and prospect over lot 0, and this right thus reserved was appurtenant to all of lot M that was reserved, so that all of lot M reserved could enjoy the easement over lot 0.

The hardship insisted upon by the learned Counsel for the defendant, that the defendant should be the owner of a lot upon which she is required to pay taxes and yet have no use of the lot, is "the result of her accepting a conveyance of the property which reserved these easements as appurtenant to the portion of tlie property not' conveyed. Defendant owns the fee of the lot, but she does not own and never has owned the right to obstruct or use this land in such a way as to interfere with the easements reserved by the .owner of the remainder of lot M when the conveyance was made. The defendant as well as the plaintiff has the benefit of the maintenance of this plot of ground as an open space for the benefit of her property. She also has the right to use it in any way that is not inconsistent with the right that the owners of lot L and the remainder of lot M reserved; but her title to the lot is subject to the right in the land reserved by its former owner, and which has never been conveyed to her and which she never has owned,.namely, the right to obstruct the land so as to interfere with the easement to which it is subject, which was reserved by its former owner. By the second deed to Holmes there was reserved to the grantor, as the owner of plots A and M, this easement of light,- air and prospect to which' plot O is subject. By the deéd to the defendant the owner of the portion of plot M conveyed, reserved to herself, as the owner of the remaining portion of plot M, a right to this easement over plot O as appurtenant to the remainder of plot M, and thus what was conveyed of plot M was subject to the use by the remainder, of plot M of that easement. Thus the title to defendant is subject to this easement, and when Mrs. Yillard, who had reserved to herself the right to use this portion of plot M which she had conveyed to the defendant, conveyed to the plaintiff the portion of plot M adjoining the property conveyed to the defendant, she conveyed the property together with all the privileges, rights and easements of light, air and prospect over the parcel of land to the west of that above described, namely, a parcel twenty-five (25) feet in width on Fiftieth street and in the rear sixty-four (64) feet and eight (8) inches in depth on each side which the parties of the first part, or either of them have as owners of that certain lot, piece or parcel of land hereinbefore firstly described and conveyed, and as owners of all the remaining portion of the parcel designated by the letter 1M ’ on a map of the property of Henry Yillard.” The proposed building, by the defendant would entirely cut off all possibility of using any easement over lot O which was appurtenant to the plaintiff’s premises, and was, I think, a clear violation of this covenant.

The recitals in these various deeds clearly indicate that plots O and H were to be maintained as open courtyards, and the practical construction of the covenants given by all of the parties who have built houses abutting on these parcels clearly show, I think, that it was the intention to constitute plots O and H open courtyards for the benefit of the abutting property. When Mr. Yillard built his residence he had windows opening upon plot 0, and his house was constructed in such a way as to indicate that he intended that it should remain an open courtyard. The covenants in the Holmes deeds not only granted to Holmes an easement in this courtyard, but imposed upon Holmes the obligation to keep and maintain the inner court O at or near the average level of the walk on Fiftieth street opposite the entrance to the passage or way designated on said map or survey by the letter P. The defendant having accepted the conveyance of the part of plot M conveyed to her which reserved to plot M an easement over plot O, she certainly was restricted from doing anything that would interrupt or destroy the easement thus expressly reserved and to which the land that she had purchased was subject. That easements of this character run with the land and pass by a conveyanee is elementary {Hills v. Miller, 3 Paige, 254; Lattimer v. Liver-more, 72 N. Y. 174), and the proposed building would thus be a violation of the rights of the plaintiff for which the plaintiff was entitled to relief.

It follows, therefore, that the judgment appealed from must be affirmed, with costs.

Pattebson, P. J., Laughlin, Clabke and Scott, JJ., concurred. Judgment affirmed, with costs.  