
    Margaret Dexter, Resp’t, v. Randolph Beard, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed January 26, 1892.)
    
    1. ^Easement—Right of way—Encroachment.
    C. owned the lands and buildings on either side of a sixteen-foot lane as well as the lane itself. On the south side of the lane a covered hatchway extended five feet from the building. In May,-1846, 0. conveyed to B. the premises on the north side of the lane, with a right of way * * * between the south line “ and a line drawn parallel with the north side of the store,” situated on the south side of the alley, “ to be used in common with the grantor ; said lane not to be encumbered, or built upon by either party.” The premises deeded to B. passed to plaintiff in 1882. In August, 1846, 0. conveyed to Van V. the premises sourli of the north line of the lane, except the right of way between the store and B.’s south line to be used by B. and Van V., whose title vested in defendant in 1882. Held, that the right was given to use the whole of the sixteen-feet of space between the Van V. store and the north side of the lane, and not merely a passage for teams, and that plaintiff could compel defendant by injunction to remove said hatchway as encroachingthereon.
    2. Same.
    Said covenant ran with the land and was not a mere personal covenant between the original grantor and grantee. The use of the words '‘ either party ” did not limit the duration of the covenant to such a period as the grantor and grantee should severally remain the owners of the dominant and servent estates, but included all persons whom the party undertook to represent and bind with himself, viz : the parly of the first (or second) part, his heirs, executors, administrators, or assigns, etc.
    Appeal from a judgment of the general term of the supreme court, fourth judicial department, entered on an order affirming a judgment, of the special term directing the defendant to remove so much of a building as encroached upon a right of way, to which the plaintiff made claim.
    
      A. P. Smith, for app’lt; J. E. Eggleston, for resp’t
    
      
       Affirming 25 St. Rep., 664.
    
   Parker, J.

By the judgment in this suit it was decreed that the defendant remove so much of a building erected by him as stands upon a strip of land of the width of four and one-tenths feet, and in length ninety feet, on the ground that it is an obstruction to a right of way granted to the plaintiff and her predecessors in title by one Parker Crosby, who was the common source of title of both plaintiff and defendant.

Prior to May 5, 1846, Parker Crosby was the owner not only of the space between certain buildings, a portion of which is in controversy here, and which the plaintiff claims to be entitled to use in common with the defendant as a right of way, but also of the lands and buildings on either side of it

At that time the condition of the premises was as follows: A lane or drive-way sixteen feet in width extended east and west from Main street On the north side of the lane was a fence extending from the street back, about one hundred and fifty feet, while on the south was a store occupied by one Van Valen which ran from the street- back about forty feet, in the rear of which was an open space where teams were accustomed to be driven for the purpose of loading and unloading butter and other produce temporarily stored in the back portion of the store. On the north side of the Yan Yalen store, and about twenty feet from the street, there was a hatch-way extending out into the lane from the building about five feet, and of the width of four and one-half feet. It was walled up on three sides, and was used for the purpose of lowering heavy packages into the cellar. On the outer or northerly side the wall was built up to about the level of the ground, while the side walls slanted from such height to the top of the cellar wall, which was about twenty inches above the ground. A frame work was placed on the top of the three sides, and on this were doors opening each way. From this hatch-way, and projecting about two feet from the upper story of the store, there was a beam covered with a hood, to which a pulley and lope could be attached, and worked in lowering or raising heavy packages in the hatch-way. On the last mentioned date, Parker Crosby granted and conveyed to Wm. 0. Barnard, his heirs and assigns, the premises next adjoining the north side of the lane. The deed, immediately after the description of the premises, contained the following: “Also a right of way, the whole length of the south line of the above described lot, between the said south line and a line drawn parallel with the north side of the store now occupied by the said James Yan Yalen, or the grantor’s village lot, this day mortgaged to said grantee, to be used by the grantee in common with the grantor ; said lane not to be encumbered or built upon by either party.” * * * Through several mesne conveyances, that portion of the land which next adjoins the lane on the north of the right of way granted by said deed passed to the plaintiff, who obtained title February 1, 1882. About three months after the conveyance to Barnard, and on August 12, 1846, Crosby conveyed to Yan Yalen the premises south of the north line of the lane, which included the store on the south side thereof, the deed containing the following reservation: “Except the right of way between the store and Bamaid’s south line, to be'used mutually by Barnard and Yan Yalen, or their heirs or assigns respectively.” By subsequent conveyance the title to the premises thus granted became vested in the defendant January 23, 1882. Each of the intermediate deeds, as well as the one to the plaintiff, contained an exception in sulstantially the same language as in the one from Crosby to Yan Yalen. The deed to the defendant, in addition, contains the following: “The right of way, hereinbefore excepted, is the same right of way described in the deed from Parker Crosby and wife to William 0. Barnard, recorded in Cortland county clerk’s office, May 14, 1846.”

It does not appear that by any act of the plaintiff, or her predecessors in title, the easement granted to Barnard had been acquired by the defendant or his grantors; therefore, the plaintiff had, at the commencement of this suit, all of the rights which were granted in the deed from Crosby to Barnard.

The first question presented to the trial court for determination was, whether the right to use the whole of the space between the Van Valen store and the north side of the lane was granted; or so much thereof as was necessary for the use which gave rise to the grant ? Inasmuch as the south line was declared tobe “ A line drawn parallel with the north side of the store now occupied by James Van Valen,” the defendant contended that a line equidistant from the north side of the store at all points was only provided for, and therefore the description is as well satisfied by a line five or ten feet from the north side of the store as one next along it. That the line created was adjustable and uncertain as to location. It was further contended on the part of the defendant, that the existence of the covered hatchway in the lane at the time of the conveyance in 1846 tended to show that the intention of the parties was that only so much of the land as should be re-quired for the purpose of passage of teams should be granted, for they could hardly have intended that the hatchway should be -closed up, and the store deprived of the benefit of it, while there remained eleven and six-tenths feet between the north side of it and Barnard’s line for a drive-way. On the other hand it was insisted, that the line referred to was one along the north side of the store; that the use of the word “ parallel ” was not intended to make the line indefinite and uncertain as to location, but was made necessary because of the fact that the store only extended back forty feet from the street, and as plaintiff was granted a right of way ninety feet deep, the limits of the right of way was thus accurately described for a distance of fifty feet in the rear of the .-store as well as along it. A part of the sentence describing the -right of way declares, “ Said lane not to be encumbered, or built upon by either party,” and this it was insisted by the plaintiff was a strong indication of the intention of the parties to include the entire sixteen feet in the right of way, for the word “ lane ” did not suggest any limitation.certainly upon the width to be used, and not to be built upon, but was so comprehensive as to necessarily embrace the entire width of sixteen feet.

Evidence was also offered tending to show that this lane was largely used by teamsters, and that while the main travel was north of the hatch-way, that to some extent wagons actually passed over it. In view of the fact that the phraseology employed in describing the right of way was susceptible of more than one interpretation, thus presenting a question as to what was intended by the parties to the instrument, whether they sought to preserve for all time a right of way of the full width of sixteen feet, or merely a passage-way of sufficient width to meet the necessities of ■the parties, became a question for the court to determine. In the ■absence of language clearly expressing the object which the parties intended to accomplish, the court was permitted, and it was its duty to look at the surrounding circumstances existing when ¡the contract was entered into, the situation of the parties and the subject matter of the instrument. Heath v. Hewitt, 127 N. Y., 166; 38 St. Rep., 687.

In conformity with this rule evidence was introduced which, considered with the deed, permitted the court to find as a fact whether the parties intended that the description should embrace the entire space or only so much of it as should be necessary for the use of the parties for a single drive-way. Simmons v. Cloonan, 81 N. Y., 557-563. The intent being found, its employment as-an aid in the construction of the doubtful clause necessarity followed. Now the trial court found that from the 12th of August,. 1846, to the present the plaintiff and her grantors were the owners of the right of way mentioned in the complaint, and “ that said right of way is of the width of sixteen feet, and extends in length from Main street, or easterly, to a distance of more than ninety feet. The same being defined in the deeds.” This finding was required, we think, if the surrounding circumstances considered in connection with the writing induced, as it apparently did, the conclusion that the parties so intended. Therefore, in such further consideration as may be given, we shall deem it established that the grant described in the deed was of a right of way sixteen feet in width and about ninety feet deep.

The appellant contends that, if so, it is merely a description of the land in, through and over which the grantee was entitled to a right of way, and would not necessarily describe the limits of the way granted; therefore, this action cannot be maintained if the plaintiff has a sufficient right of way north of defendant’s building for the purposes had in view at the time of the grant

His position in that respect requires consideration, unless the plaintiff can take advantage of the covenant providing “said lane not to be encumbered, or built upon by either party.” This the appellant insists she cannot do ; because the covenant is not one running with the land, but a mere personal covenant between the original grantor and grantee.. In support of such contention is cited, Harsha v. Reid, 45 N. Y., 415; and Clark v. Devoe, 124 id., 120; 35 St. Rep., 206. In Ilarsha’s case the covenantees did not derive their title from the covenantor, for the covenant was an independent personal contract in no way connected with the title. The defendant in that case made a contract with a third party that no one should be allowed to erect a grist mill on a water privilege which was included in a subsequent sale to the plaintiff. By it was granted no interest in the premises to the covenantees, and it was therefore a purely personal contract, which could in no way burden the estate which came to the subsequent grantees.' It has therefore no bearing upon the question here presented. In Glark’s case, the owner of two adjoining lots in the deed conveying one of them covenanted for himself, his heirs, executors, administrators and assigns, that he would not erect on the lot remaining unsold any building which should be regarded as a nuisance.

It will be observed that the covenant had no relation to the land conveyed, but referred wholly to premises with reference to which neither party parted with, or received any title or interest-at the time with, and as a part of, making the covenant.

It was then a mere personal covenant, not binding on a subsequent grantee of such premises. The question presented therefore, was whether this personal covenant rendered the covenantor liable to respond for the acts of subsequent grantees, as well as his own: or only for his own. And the court held, that the grantor only intended to contract against his own acts, and the covenant should not be read distributively as if the grantor had covenanted that he would not erect a structure which should be regarded as a nuisance, nor would his executors, administrators or assigns.

Here the question presented is quite different. The grantor, in the deed conveying the fee of certain lands, also granted an easement in a strip of land adjoining, which was described. While .the fee still remained in the grantor, the easement of a right of way became annexed to the lands conveyed. And to more securely effectuate the intention of the parties that the right of way should not be interfered with, it was further agreed that the lane should not be encumbered, or built upon by either party.

notwithstanding the manifest intention of the parties, and the fact that the clause covenanting against encumbrances on the right of way formed a part of the sentence describing the - limits of the easement, the appellant contends that the easement was not intended to bind other than the immediate parties to the instrument, because in that phrase the words, “ either party,” were used instead of, “ either party, their heirs, executors, administrators or assigns.”

The construction thus contended for would, we think, not only do violence to the intention of the parties, but would be too narrow, in the light of the phraseology elsewhere employed in the deed. It recites that the parties of the first part, “ doth grant, bargain, sell, alien, remise, release and convey, unto the party of the second part, and to his heirs and assigns forever,” the premises ■described, and also the right of way, which concludes with the phrase, “ said lane not to be encumbered, or built upon by either party.”. And further declares that the parties of the first part, for themselves, their heirs, executors, administrators and assigns, do covenant and agree to and with the party of the second part, his heirs, and assigns, that they are seized of the estate ;• have a good right to convey; that the estate is free from encumbrances; and that the grantee shall have quiet enjoyment of every part, without molestation by the parties of the first part, their heirs or assigns.

Had the words “ either party ” been omitted, it would not have been contended but that the covenant bound all subsequent grantees. And their use cannot be held to have been intended to limit the duration of the covenant to such a period as the grantor and grantee should severally remain the owners of the dominant and servient estates, for they were undoubtedly employed, not in a restrictive sense, but broadly, so as to include by the word “ party ” all persons whom the party undertook to represent and bind with himself, viz.: the party of the first (or second) part, his heirs, executors, administrators or assigns.

It follows that so much of defendant’s building as encroached •upon the lane was in violation of the rights of the plaintiff, and she thereby became entitled to have the wrong righted. The court, in the exercise of a discretion guided by established equitable principles, reached a conclusion that the injunction prayed for in the complaint afforded the only adequate remedy, and no-sufficient reason has been pointed out to support a reversal of such determination by this court. We have examined the exceptions, to which our attention has been directed, but they do not call for' a reversal of the judgment, and need not be discussed.

The judgment should be affirmed.

Judgment affirmed, with costs.

All concur, except Vann, J., not voting.  