Hagerty v. Lee

• Decision Date: 08 October 1888
• Citation: 15 A. 399,45 N.J.E. 1
• Parties: HAGERTY v. LEE et al.
• Court: New Jersey Court of Chancery

15 A. 399

45 N.J.E. 1

HAGERTY

v. LEE et al.

Court of Chancery of New Jersey.

October 8, 1888.

(Syllabus by the Court.)

In equity. On motion to dissolve injunction.

The complainant, who was the owner of a strip of land fronting 50 feet on Main street in the town of Phillipsburgh, and running back southerly, that width, 220 feet to Union street, conveyed to Christopher S. Winters the westerly half of that land by deed which, in the language of the bill, contains the following reservation: "Reserving the right to the free use of the light and air over the tract above described, in case he should build on the common line between the parties, and the right to put windows in said building, overlooking the tract above described. It being agreed between the parties hereto that in case either party builds on the common line for a distance of twenty-four feet, more or less, from the south edge of Union street, the line is to be in the middle of the foundation wall, at the option of the parties hereto, and that the expense of the wall and partition to the roof of the building shall be equally borne share and share alike by each. The party of the first part reserving the right to continue the wall in the same way and manner as last above mentioned, but the erection thereof to be at his own expense, with the further right to use the whole wall." Immediately after the delivery of this deed, Winters proceeded to erect a frame dwelling 24 feet deep, using therein a party-wall of the description contemplated. In October, 1884, the complainant constructed a store and dwelling upon the land which remained to him, using therein the party-wall and a continuation of it, extended by him southerly 68 feet. In the extension he made windows overlooking Winters' land. In June, 1886, Winters sold his property to the defendant John Lee, by deed, which contained the following stipulation: "It is expressly agreed by and between the parties hereto that the said party of the first part conveys these premises subject to the same reservation and limitation in regard to windows as is recited in the same deed above referred to, made by the said Hagerty to the said Winters. And also it is agreed that the same conditions and agreement regarding the trenches and foundation walls as recited in said deed shall be binding upon the parties hereto, and the conditions and covenants in the said deed made by the said Hagerty to the said Winters above referred to in regard to windows, foundation wall, trenches, and partitions or other walls are to be binding upon the parties hereto, the same as...