Blumberg v. Weiss

• Decision Date: 28 January 1941
• Docket Number: No. 217.,217.
• Citation: 129 N.J.Eq. 34,17 A.2d 823
• Parties: BLUMBERG v. WEISS et ux.
• Court: New Jersey Supreme Court

17 A.2d 823

129 N.J.Eq. 34

BLUMBERG

v. WEISS et ux.

No. 217.

Court of Errors and Appeals of New Jersey.

Jan. 28, 1941.

[Copyrighted material omitted.]

Appeal from Court of Chancery.

Suit by Flyman Blumberg against Max Weiss and his wife, to enjoin defendants from maintaining an extension to their building and from erecting any other structure which would interfere with complainant's claimed right of light and air through complainant's windows. From a decree for complainant, 126 N.J.Eq. 616, 10 A.2d 743, the defendants appeal.

Reversed and remanded, with direction.

Jacob L. Winograd and Samuel S. Stern, both of Jersey City, for appellants.

Samuel F. Kanis, of Jersey City (Henry T. Stuhr, of Jersey City, of counsel), for respondent.

HEHER, Justice.

The common owner of two contiguous lots, each occupied by a dwelling house, conveyed one by deed of general warranty with full covenants; and the question at issue is whether there was a reservation by implication of a quasi easement of light and air in favor of the parcel retained as the dominant tenement.

These are the pertinent circumstances: At the time of the separation of the title, the house on the asserted dominant tenement extended, the full width thereof, beyond the rear line of the adjacent house conveyed; and the easement is affirmed in respect of windows in the wall along the division line overlooking the vacant portion of the lot conveyed. The declared dominant tenement also has a rear yard.

The learned vice chancellor, conceiving that he was bound by the principle of the case of Central Railroad Co. v. Valentine, 29 N.J.L. 561, ruled that the "windows were apparent" to the grantee, and there was an implicit reservation of such easement, since it "is necessary to the beneficial enjoyment" of the dominant tenement, so-called.

The inquiry therefore is whether, upon the conveyance, the claimed easement arose by implication of law or of fact. There is no suggestion of an easement by prescription. Prior to the severance of ownership, there was a unity of seisin of the alleged dominant and servient tenements, and so there could not be the adverse user essential to the establishment of a right grounded in or presupposing a lost grant. In this State it was early declared to be the rule that only those easements which are "apparent and continuous" pass as appurtenant on the partition of the heritage. Those not rising to that dignity are not incident to the grant, and are not included therein "unless the grantor uses language in the conveyance sufficient to create the easement de novo," or it is a way of necessity. Fetters v. Humphreys, 19 N.J.Eq. 471; Seymour v. Lewis, 13 N.J. Eq. 439, 78 Am.Dec. 108; Stuyvesant v. Woodruff, 21 N.J.L. 133, 47 Am.Dec. 156; Stanford v. Lyon, 22 N.J.Eq. 33; Ncwhoff v. Mayo, 48 N.J.Eq. 619, 23 A. 265, 27 Am. St.Rep. 455; Hazeldine v. McVey, 67 N.J. Eq. 275, 63 A. 165; Georke Co. v. Wadsworth, 73 N.J.Eq. 448, 68 A. 71; Suffield v. Brown, 4 De Gex, J. & S. 185.

And there is no basis for the view that the parties designed to create such servitude upon the severance of the title. Necessity was the genesis of the doctrine of quasi easements by implication; and it was at first confined to ways of necessity, although it has been greatly enlarged. Seymour v. Lewis, supra. Here, the grant did not provide in terms for the claimed easement. Indeed, there was a solemn covenant against encumbrances; and the reservation of a way of necessity by implication has always been deemed an exception to the rule that a grantor may not be heard in derogation of his grant, grounded in these considerations: In the absence of express provision to the contrary, it is entirely reasonable to presume "an understanding of the parties that the one selling a portion of his land shall have a legal right of access over the part sold to the remainder if he cannot reach it in any other way;" and also that "it is pro bono publico that the land should not be unoccupied." Vandalia R. Co. v. Furnas, 182 had. 306, 106 N.E. 401; Collins v. Prentice, 15 Conn. 39, 38 Am.Dec. 61; Tong v. Feldman, 152 Md. 398, 136 A. 822, 51 A.L.R. 1291; Dutton v. Taylor, Lutw. 1487, 125 Reprint 819; 19 C.J. 926.

Whatever the extension of the original doctrine, it is now generally recognized that there is a distinction between an implied grant and an implied reservation of a quasi easement, and that those of the latter class are not, except possibly in the case of strict necessity, raised by implication, since the grant is, on well-settled principles of interpretation, to be viewed most strongly against the grantor, and is not ordinarily subject to modification by parol; and it is incumbent on the grantor, if he would reserve an easement, to make such the subject of express provision in the deed. Toothe v. Bryce, 50 N.J.Eq. 589, 25 A. 182; Wiesel v. Smira, 49 R.I. 246, 142 A. 148, 58 A.L.R. 818. In Suffield v. Brown, supra, Lord Chancellor Westbury said: "It seems to me more reasonable and just to hold that if the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant, rather than to limit and cut down the operation of a plain grant (which is not pretended to be otherwise than in conformity with the contract between the parties), by the fiction of an implied reservation. If this plain rule be adhered to, men will know what they have to trust, and will place confidence in the language of their contracts and assurances. * * * That the purchaser had notice of the manner in which the tenement sold to him was used by his vendor for the convenience of the adjoining tenement is wholly immaterial, if he buys the fee simple of his tenement, and has it conveyed to him without any reservation. To limit the vendor's contract and deed of conveyance by the vendor's previous mode of using the property sold and conveyed is inconsistent with the first principles of law, as to the effect of sales and conveyances. * * * But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of him the grantor. * * * And the analogy, if it be worth grave attention, fails in the case to be decided, for when the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end, by contract, to the relation which he had himself created between the tenement sold and the adjoining tenement; and discharges the tenement so sold from any burthen imposed upon it during his joint occupation; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership." He found distinguishing factors in the case of two interdependent tenements, e. g., two adjoining houses "so constructed as to be mutually subservient to and dependent on each other, neither being capable of standing or being enjoyed without the support it derives from its neighbour; in which case the alienation of one house by the owner of both would not estop him from claiming, in respect of the house he retains, that support from the house sold, which is at the same time afforded in return by the former to the latter tenement * * *; but where the right claimed in respect of the tenement retained by the joint owner against the tenement granted by him is separable from the former tenement, it is severed and either passed or extinguished by the grant. It must be always recollected that I have been speaking throughout of cases where (as in the present case) the easement claimed had no legal existence anterior to the unity of possession, but is claimed as arising by implied grant or reservation upon the disposition of one of two adjoining tenements by the owner of both; which is in my opinion an ingenious but fanciful theory, which is, as to...