
    Mary Drucker, as Executrix, etc., of Ephraim Drucker, Deceased, Appellant, v. Manhattan Railway Company and Others, Defendants, Impleaded with Esther Grodjinski, Now Known as Esther Davis, Respondent.
    First Department,
    March 6, 1914.
    Real property — easements — attempted reservation of easements invalid—action for damages to easements after conveyance of dominant estate — resulting trust — cause of action for damages to easements constitutes an interest in real property.
    Basements of light, air and access, appurtenant to real property abutting upon a public street, are inseparable from the dominant estate, and upon a conveyance of the latter, such easements pass to the grantee, notwithstanding the grantor’s attempted reservation of the same or of any rights of action for the invasion or destruction thereof.
    Hence, an owner of real property, after a conveyance of the same with an attempted reservation of easements occupied by an elevated railroad, and of any claims for damages on account thereof, and after a subsequent conveyance by his grantee, without any such reservation, has no right of action to enjoin the operation of the elevated railroad on account of its trespassing upon the easements of light, air and access appurtenant to the property.
    As the grantees of the original owner of the property never attempted to recover damages sustained by the appropriation of the easements, and have received nothing from the railroad company on account thereof, there cannot be a resulting trust in favor of the original owner, and, hence, the complaint in a suit by him against the railroad company and the present owner of the property was properly dismissed as to the latter.
    
      It seems, that the original owner may have a cause of action to recover for the damages which had accrued up to the time of his conveyance.
    Whatever cause, of action the original owner had was an interest in real property, and, hence, did not pass to his executrix upon his death.
    Laughlih and Hotchkiss, JJ., dissented, with opinion.
    Appeal by the plaintiff, Mary Drucker, as executrix, etc., from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 4th day of February, 1913, upon the decision of the court dismissing the complaint as to the defendant Grodjinski-Davis, after a trial at the New York Special Term,
    
      
      Roger Foster, for the appellant.
    
      Isaac E. Bermant, for the respondent.
   Ingraham, P. J.:

The nature of the action and the subsequent proceedings in it are stated in the opinion of my brother Laughlin.

The plaintiff’s testator acquired title to the property abutting on Division street on the 29th of May, 1885, and conveyed the premises by a full covenant warranty deed to Zimmermann on the 1st day of June, 1887. By that conveyance the legal title to the property including the easements appurtenant to it in Division street passed to the grantee. On the 29th of May, 1888, Zimmermann conveyed the property to the defendant Davis by a full covenant warranty deed containing no covenant in relation to these easements and thereby Davis became the owner of the property and the easements appurtenant thereto in Division street. When the plaintiff’s testator conveyed this property to Zimmermann the conveyance contained a clause by which the plaintiff’s testator reserved for himself any and all claim and causes of action against all the world for any and all losses and damages to himself and to the premises above described on account of the construction and the present and future continuance of the elevated railroad structure in Division Street and the past and future operation of the same and reserves to himself the easement now occupied and invaded by the said elevated railroad and the operation of the same.” When Davis purchased the property, however, she did not assume the performance of that covenant or consent to such a reservation. Neither Zimmermann nor the grantee, Davis, undertook to prosecute any action to recover any damages sustained by the plaintiff’s testator by reason of the construction of the elevated railroad in Division street, nor did they agree to pay to the plaintiff’s testator any amount that they should receive as compensation for the encroachment by the railroad company upon the easements appurtenant to the premises. No obligation rested upon Davis to either pay to the plaintiff’s testator any damages that she should recover nor to constitute herself a trustee for the plaintiff’s testator in relation to such damages or compensation for a conveyance of the easements. What the plaintiff’s testator sought to do was to sever the easements from the property to which they were appurtenant and retain title to such easements notwithstanding his conveyance of the property to which they were appurtenant. If the conveyance was ineffective for such a purpose I cannot see that the plaintiff’s testator had any right in an action in equity to restrain the railroad company from continuing the trespass, for in such a case the easements would have vested in the plaintiff’s testator’s grantee and such grantee only could sue for a future trespass upon the easements or apply to a court of equity to restrain a continuing trespass.

The plaintiff’s testator having thus parted with title to the property commenced an action against the defendant on the 22d of November, 1888, after the conveyance by Zimmermann to the defendant Davis. Before this action .came on for trial and on the 21st of July, 1910, the plaintiff’s testator died and on May 22, 1911, the action was revived and the plaintiff as his executrix was substituted as plaintiff in the action.

The first question presented is whether the plaintiff’s testator ever had a cause of action to restrain the continuing trespass of the defendant and that would depend upon the question of whether or not the covenant in the deed of the plaintiff’s testator to Zimmermann was effective to reserve to the plaintiff’s testator any title to or interest in the easements appurtenant to the property that was conveyed to Zimmermann. It is conceded, as I understand it, that the covenant in the deed conveying the property from the plaintiff’s testator to Zimmermann was ineffective for such a purpose, and that seems to be the settled law of this State. (See McKenna v. Brooklyn Union El. R. R. Co., 184 N. Y. 391; Western Union Tel. Co. v. Shepard, 169 id. 170.) In McKenna v. Brooklyn Union El. R. R. Co. (supra) Judge Werner, in delivering the opinion of the court, said: “Easements of light, air and access, appurtenant to real property abutting upon a public street pr highway, are inseparable from the dominant estate, and upon a conveyance of the latter such easements pass to the grantee, notwithstanding the grantor’s attempted reservation of the same, or of any rights of action for the invasion or destruction thereof.” And it was further held that the only person who could sue for damages thus caused or could execute a release in satisfaction thereof was the owner of the premises as to which such easements were appurtenant, and a person or corporation invading or destroying such easements has the right to obtain a release from the owner of the dominant estate, who alone is legally entitled to the resulting damage. If notwithstanding this reservation in the deed from the plaintiff’s testator to Zimmermann the title to the easements and the right to enforce a trespass thereon passed to Zimmermann, then it would seem to follow that the plaintiff could not maintain an action to either enjoin a continuing trespass or to recover damages for any trespass by the railroad company after the execution and delivery of the conveyance; and as this action was commenced after the execution and delivery of this deed, it would seem to follow that the plaintiff had no cause of action. I think it further settled that the plaintiff’s testator could not at that time have commenced any action against the railroad company. In McKenna v. Brooklyn Union El. R. R. Co. (supra) Judge Werner also said: “ There is absolutely no privity of contract or relation between them. The plaintiff’s equitable remedy is against her grantee alone, who is impressed into the relation of trustee as to the fund, merely to prevent such wrongs and hardships as might be inseparable from an inadequate legal remedy.” (See, also, Pegram v. Elevated R. R. Co., 147 N. Y. 135.)

It is quite probable that the plaintiff had a cause of action to recover for the damages which had accrued up to the time of the conveyance, hut that was a cause of action against the railroad company as a trespasser and in which neither the plaintiff’s testator’s grantee nor Zimmermann’s grantee were at all interested. We may assume that by virtue of the attempted reservation a resulting trust was created by virtue of which Zimmermann, the grantee, became a trustee for his grantor as to all moneys received by him or which he should recover for the invasion or destruction of such easements; hut Zimmermann never attempted to enforce any such claim against the railroad company, and when he conveyed the property to the defendant Davis, he, by a full covenant warranty deed, conveyed the property absolutely free and clear of any engagement with the plaintiff’s testator and whatever obligation existed was not assumed by Davis. Davis thereby became the owner of the property which included the easements in Division street, and, as I understand the authorities, took it free from any obligation to perform any personal covenants of Zimmermann in relation to these easements. Davis never undertook to act as trustee for the plaintiff’s testator; never obligated herself to sue to enforce the plaintiff’s testator’s right to any damage sustained in consequence of the destruction or impairment of the easements; and certainly never undertook to execute and convey to the railroad company a release or conveyance of her interest in the street which had been appropriated or affected by the construction or operation of the railroad. As before stated, neither Zimmermann nor Davis ever attempted to recover the damages sustained by the appropriation of the easements and neither has received from the railroad company or from anybody else any sum of money on account of the construction or operation of this railroad in the street. There is nothing, therefore, to which a resulting trust could attach. Certainly the railroad company could not be compelled to pay to the plaintiff or any one else any sum of money either for damages sustained by the abutting property after the plaintiff’s testator conveyed it or as a condition for executing a conveyance of the interest in the street which was appurtenant to the abutting property without a release or conveyance from the owner of the fee of the abutting property. It is clear that the defendant Davis has never obligated herself to grant such a release or conveyance and the court could not by decree compel her to make such a release or conveyance, so neither at the time the action was commenced nor at any time since could the court give to the plaintiff any relief either as against the railroad company or as against the defendant Davis.

Nor do I think that whatever cause of action or right the plaintiff’s testator had passed to his executrix upon his death. If this covenant in the, deed to Zimmermann had any force at all it was an interest in real property that would descend to the devisees or heirs at law of the plaintiff’s testator. It might be that as between the plaintiff’s testator and Zimmermann an attempt to enforce this trust would be in the nature of a chose in action which would pass to the personal representatives of the deceased; but as no trust existed as between the plaintiff’s testator and Davis who had acquired absolute title to the property prior to the commencement of the action, I cannot see that there would be any cause of action existing against either the railroad company or Davis that could pass to the personal representatives of the deceased. The fact that there had been a stipulation entered into between the railroad company and Davis cannot help the plaintiff. There was nothing in that stipulation which bound the railroad company to pay Davis anything. It was conditioned upon Davis’ executing a release or conveyance which she has not done and which she is not bound to do and which this court cannot compel her to execute. (Maurer v. Friedman, 197 N. Y. 248; Miller v. Clary, 210 id. 127.) Such a stipulation made long after the action was commenced, cannot give to the plaintiff any right either to recover the amount specified in that stipulation or to charge the defendant Davis as trustee for such an amount.

Nor is the question as to whether or not Davis could be held as trustee for any amounts that she received from the railroad company presented in this, action, as no action to impress such a trust could be commenced until Davis had either received the amount from the railroad company for the impairment of the easements or had obtained a judgment or attempted to enforce such a claim against the railroad company. Such an action could only be commenced after such a trust fund had come into the possession of Davis to which a trust could attach.

Entertaining these views, therefore, I think the court was clearly right in dismissing the complaint as against the defendant Davis, and the judgment appealed from should, therefore, be affirmed.

McLaughlin and Dowling, JJ., concurred; Laughlin and Hotchkiss, JJ., dissented.

Laughlin, J. (dissenting):

This action is, in effect, one to enjoin the operation of the elevated railway on account of its trespassing upon the easements of light, air and access appurtenant to the premises known as Nos. 29 and 29% Division street in the borough of Manhattan, New York, and for judgment against the corporate defendants for the accrued damages for depreciation and rental value of the premises, or in the alternative for such damages and the damages to the fee for the permanent appropriation of the easements.

The action was originally brought by Ephraim Drucker, but he died on the 21st day of July, 1910, and on May 22, 1911, his executrix was substituted.

The action was commenced by the service of the summons and complaint on the corporate defendants on the 22d day of November, 1888, and on the defendant Davis, whose name then was G-rodjinski, on the 27th day of March, 1889, and on the defendant Zimmermann on the 15th day of April, 1889. Sendee of the amended complaint on all defendants was completed on the 19th day of July, 1889. Issue was joined by the corporate defendants by the service of an answer to the amended complaint on the 21st day of January, 1890. The defendant Zimmermann defaulted in appearing. The defendant Grodj inski-D avis appeared on the 19th day of June, 1911, and joined final issue by the service of an amended answer to the amended complaint on the thirty-first day of July of the same year.

Drucker, the original plaintiff, acquired title to the premises on the 29th day of May, 1885. He conveyed the premises by a full covenant warranty deed to the defendant Zimmermann on the 1st day of June, 1887, but he attempted to reserve certain rights and interests by inserting a provision in the deed of conveyance as follows:

The said Ephraim Drucker reserves for himself any and all claim and causes of' action against all the world for any and all losses and damages to himself and to the premises above described on account of the construction and the present and future continuance of the elevated railroad structure in Division Street and the past and future operation of the same and reserves to himself the easement now occupied and invaded by the said elevated railroad and the operation of the same.”

The elevated railroad was constructed in Division street in front of the premises in question in the year 1879, and has ever since been maintained and operated therein. So far as appears there has been no payment of or settlement for any damages caused to the easements by the operation of the railroad during the time of Drucker’s ownership or since. On the 29th day of May, 1888, Zimmermann conveyed the premises to the defendant G-rodjinski-Davis by a full covenant warranty deed containing no assumption by the grantee of any liability or obligation of the grantor by virtue of the provision in the deed from Drucker to Zimmermann herein quoted and ho reference thereto.

Plaintiff alleged in the amended complaint that the individual defendants refused to allow the use of their names as parties plaintiff, and refused, after indemnity against costs and expenses was duly offered, to join with- the plaintiff in bringing the action, and that the continuance of the maintenance and operation of the railroad would cause the plaintiff irreparable damages for which he had no adequate remedy at law, and that the corporate defendants were insolvent, and that the damages to the rental value of the premises exceeded the sum of $2,000 per annum. Judgment was demanded that the individual defendants be required “ to join in any conveyance or release of said easement, and any damages caused said premises which the court may direct to be made to the corporate defendants as a condition to any relief allowed to plaintiff herein,” and against the corporate defendants for $2,000 per annum from June 1, 1885, for damages to the rental value of the premises, or an injunction perpetually enjoining the maintenance and operation of the railroad, and, as an alternative to the injunction, that the corporate defendants be required to pay the amount determined by the court as the value of the easements and damages to the fee.

. On June 30, 1911, a supplemental complaint was served on all of the defendants who had appeared, and on September 22, 1911, an amended supplemental complaint was served on them. The original supplemental complaint is. not in the record, but the amended supplemental complaint shows that the defendant Zimmermann brought no action against the corporate defendants, and that the defendant Davis did not bring any action against them, either for damages or for an injunction on account of the maintenance and operation of said railroad until the month of October, 1910; that as the result of negotiations between the plaintiff and the corporate defendants they entered into a stipulation in writing on the 27th day of June, 1911, as follows:

It is Hereby Stipulated that in case it shall be determined that the plaintiff herein is entitled to the rental damages, if any, in respect to the property described in the complaint, for the period subsequent to June 1st, 1887, and to fee damages as an alternative to an injunction, that then the amount which the defendants, Manhattan Railway Company and Metropolitan Elevated Railroad Company, shall pay in return for a conveyance of the said easement occupied by the elevated railway structure as aforesaid and for said past damages shall be equal to, and not exceed the sum of, seven thousand two hundred fifty ($7,250) dollars, which sum shall include costs and counsel fees, it being understood that this fixation of the damages shall only apply in case the plaintiff procures a release by the defendant, Davis, of any and all claims against the defendants, Manhattan Railway Company and Metropolitan Elevated Railway Company, arising from the construction and maintenance of said railway, or a judgment of the Court adjudicating that said Davis has no interest in the said damages; and it is Further Stipulated on behalf of the railway companies that the railway companies shall pay over said sum of money to such persons as may be entitled to the same at any time upon the presentation of a conveyance of the said easement and a release of all past rental damages signed by the plaintiff and by the defendant, Davis. It is Understood and Agreed by and between the respective parties hereto that the payment of the said sum of seven thousand" two hundred and fifty ($7,250) dollars, shall be in discharge of all damages, whether rental or fee, to which either the plaintiff herein or the said Davis may be entitled, with the exception of such damage, if any, as may be due to the alterations in- the said elevated railway structure incident'to the change "of grade" in Division Street, necessitated by the construction of the Manhattan Bridge;” that prior to the execution of said stipulation and during the year 1910, the corporate defendants were willing to settle the litigation and to pay the said sum of $7,250 to whomsoever might he entitled thereto upon receiving a conveyance of the easements signed by the plaintiff and by the defendant G-rodjinski-Davis, but that she refused to execute a conveyance and release of the easements; that in the month of October, 1910, the defendant Davis, without the knowledge or consent of the plaintiff, began an action against the corporate defendants for damages to the rental value of the premises and for an injunction; that defendant Zimmermann disappeared more than seven years ago and has died; that neither the defendant Zimmermann nor the defendant Grodjinski-Davis ever acquired more than a formal title to the easements and to said damages as trustees, and that they have failed • to enforce and have abandoned the trust and neither has any right or title at law or in equity to any part of said damages; that it was the intention of Drucker and Zimmermann that the reservation in the deed should be a covenant running with the land obligating subsequent purchasers to assist Drucker in any litigation that might be instigated for the recovery of damages, or to institute an action in his name and for his benefit, to collect the damages to the rental value and to the fee as an alternative to an injunction against the operation and maintenance of the railroad; that unless this action can be maintained plaintiff will lose-the rental damages for the period between June 1, 1885, and the year 1905. Judgment is demanded in the amended supplemental complaint in accordance with the stipm lation between the plaintiff and the corporate defendants, and directing the defendant G-rodjinski-Davis to join in and to execute a release and conveyance of the easement, and requiring the payment of the money to the plaintiff. The corporate defendants jointly answered the amended supplemental complaint and admitted the allegation with respect to the stipulation but put in issue other material allegations thereof. The defendant Davis. answered, putting in issue the material allegations of the amended supplemental complaint.

. On the trial it was shown that on the 15th day of December, .1911, a stipulation was entered into between the defendant Davis and the corporate defendants in the action which she had brought against them, to the effect that if it should be finally determined in this action that the plaintiff herein is entitled to no rental damages for the period subsequent to May 31, 1888—practically the date on which the. premises were conveyed to defendant Grodjinski-Davis — and is entitled to no fee damages as an alternative to an injunction, then the corporate defendants would pay to the defendant Davis for the conveyance of the easements and the release of damages on account of the maintenance and operation of the railroad, the sum of $8,625; and it was expressly stipulated that $1,375 of that amount was for the fee and rental damages caused by the alterations and additions to the elevated structure. The alterations and additions to the elevated railroad structure were made after the conveyance by Drucker. Deducting the amount allowed therefor, in said stipulation, we find that the settlement agreed upon between the corporate defendants and the defendant Davis was, as to the amount, the same, in effect, as that agreed upon between the plaintiff and the corporate defendants. At the close of the trial, counsel for the corporate defendants stated to the court that his clients were willing to pay the damages specified in the stipulation and to have them apportioned between the parties to this action in any manner which the Court deems proper.” The court took no action on that suggestion and made no disposition of the action as against the corporate defendants.

Notwithstanding Drucker’s attempt to reserve the easements, they passed to his grantee, and an action for an invasion thereof can only be maintained by the owner of the fee. (McKenna v. Brooklyn Union El. R. R. Co., 184 N. Y. 391; Western Union Tel. Co. v. Shepard, 169 id. 170; Shepard v. Manhattan R. Co., 72 App. Div. 132.) Under the stipulation between the plaintiff and the corporate defendants it is a condition precedent to the plaintiff’s right to recover the stipulated amount for rental and fee damages, that a release or conveyance of the.easements by the defendant Davis shall be procured and delivered to the railroads. Inasmuch as she did not assume, by the conveyance to her, any obligation owing by Zimmermann to Drucker, with respect to the claim or cause of action for rental or. fee -damages, we are impelled by what we deem, a controlling precedent to hold that she cannot be compelled to execute a release or conveyance of the easements. (Maurer v. Friedman, 197 N. Y. 248. See, also, Miller v. Clary, 210 N. Y. 127.) If the corporate defendants had paid the money into court or waived their right to require a release or conveyance of the easements, then the court might award the fund to the party entitled thereto, or apportion it between them if either should not be entitled to all. Although the plaintiff could not maintain an action to enjoin the maintenance and operation of the railroad for the reason that the easements passed with the fee, yet it is quite clear that she would be entitled to recover at law the damages which accrued before Drucker conveyed, and as against the defendant Davis to recover also any amount awarded or recovered for subsequent damages to the rental value of the land, and that as to such damages the owner of the fee would hold the same in trust for her. (Schomacker v. Michaels, 189 N. Y. 61; Western Union Tel. Co. v. Shepard, supra; Freund v. Biel, 114 App. Div. 400; affd., 193 N. Y. 662.) Although damages to the fee that might be awarded or recovered as a substitute for injunctive relief were not specifically reserved by the deed from Drucker to Zimmermann, it may well be argued that it was the intention of the parties that such damages should also be reserved to the grantor. That point, however, is not presented for decision by this appeal, and inasmuch as the views of the members of the court are not in accord with respect thereto, it is not our intention to express an opinion thereon at this time. As the case is presented by this record we have no fund in court to award or apportion.

It is contended, in effect, by the learned counsel for the appellant, that the offer of the corporate defendants through their counsel should be regarded as a consent on their part to have the amount awarded or apportioned without requiring the execution of a release or conveyance of the easements. It may be that the corporate defendants would, in the circum-stancesj be fully protected by the judgment if that were done. Their offer, however, 'was not sufficiently definite to warrant the court, on an appeal to which they are not parties, in construing it as a waiver of the execution of any release or conveyance of the easements. But the issues in the action should be finally determined between all the parties, and since the learned justice who presided at the trial is no longer on the bench, it becomes necessary to order a new trial.

It follows that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Hotchkiss, J., concurred.

Judgment affirmed, with costs.  