Hazlett et al. v. Powell et al.

• Decision Date: 01 January 1858
• Citation: 30 Pa. 293
• Parties: Hazlett et al. versus Powell et al.
• Court: Pennsylvania Supreme Court

Page 293

30 Pa. 293

Hazlett et al. versus Powell et al.

Supreme Court of Pennsylvania.

ERROR to the District Court of Philadelphia.

Guillou and F. C. Brewster, for the plaintiffs in error.—The construction of the party-wall, under the circumstances offered to be proved, was an eviction of the lessees, and suspended the rent: Naglee v. Ingersoll, 7 Barr 185; Hemphill v. Eckfeldt, 5 Wh. 274; Cohen v. Dupont, 1 Sandf. S. C. 260; Peters v. Grubb, 9 Harris 455; Comyn on Land. and Tenant 172, 180; Smith v. Merrable, 11 M. & W. 5; Edwards v. Etherington, Ryl. & M. 268; s. c. 7 D. & R. 117; Collins v. Barron, 1 M. & Rob. 112; Cowie v. Goodwin, 9 C. & P. 378.

If the objection to this evidence means that the tenant was bound to take notice that a party-wall might be built there, it is readily answered: he was not necessarily aware that the adjoining premises belong to a hostile owner, and there was no notice to him of the intention to do so, as there had been to his landlord. Good faith required that the lessor should have communicated this fact to his intended tenant; and if the lessee was bound to presume anything, it was that his lessor had conformed to the law as to party-walls, and built his wall and windows so that the occupants of the property should not be interfered with; and above all, that he had not so built them as to prevent his enjoyment of the premises demised.

J. B. Townsend, for the defendants in error.—It is denied that there was any offer in this case to prove eviction by title paramount.

The erection of the party-wall was under legislative authority, and against the wish and consent of the lessor. He had no power to control the use of the adjoining property: Dobbins v. Brown, 2 Jones 75; Baker v. Holtzapffel, 4 Taunt. 45; Arden v. Pullen, 11 M. & W. 321; Izon v. Gorten, 5 Bingh. N. C. 501; s. c. 7 Scott 537; Commonwealth v. Comly, 3 Barr 374; Magaw v. Lambert, Id. 444; Fisher v. Milliken, 8 Barr 121.

The opinion of the court was delivered by THOMPSON, J.

The property which passed by the express terms of this lease was the lot of ground on which the "Columbia Hotel" was erected, to the extent of its boundaries, with dominion upwards and downwards, ad infinitum, "cujus est solum, ejus usque ad cœlum, ad inferos," together with the messuages, buildings, and fixtures on it, or appurtenant to it.

If the plaintiffs in error are entitled to an apportionment of the rent, it is because some covenant of the landlord has failed, in regard to some portion of the premises, by reason of which the lessees have been evicted from, or disturbed in, their possession, by title paramount; or because of fraud in the contract.

The covenant implied by the words "demise and lease," used in the indenture, is a covenant for quiet enjoyment and for title: 8 Harris 484; 13 N. H. Rep. 513; Rawle on Cov. 145; 7 Mass. Rep. 68; 8 Mass. 201; 11 Johns. 122; and undoubtedly covered all that passed by the terms of the lease.

The body of the grant, and the possession under it, remained intact and in the undisturbed occupancy of the lessees, up to and at the time of trial. The complaint regards eighteen windows obstructed and darkened by a party-wall erected by the adjoining owner. Was this an eviction or disturbance for which the lessor is answerable by reason of the covenants entered into with the lessees? This depends upon the contract, and the right of the lessor to the premises. It will not be denied, that if the lessor had conveyed or leased by express terms to the lessees, a right to the unobstructed enjoyment of light and air over the vacant lot, for and during their term, he would have been answerable for it, in case of eviction or disturbance. It would have been a clear breach of his covenant for quiet enjoyment. Although it is truly said that these elements are of "common right," yet, so far as they descend upon, or exist above, a man's ground, they are as much his property as is the ground itself, subject, of course, to the common use of all while on the premises. So a lateral approach of light and air may be an easement; Gale and Whatley 191; the right being subject to be acquired by grant or prescription, and of course to be lost in the same way.

The windows were darkened by the acts of the adjoining owner on his own property, by virtue of a title to that property, and not on account of any right or dominion over the lessor's property. Had the lessor conveyed, either expressly or by implication, anything, the title to which this assertion or exercise of ownership by the adjoiner was paramount? In the lease itself, although it was very special, and defined clearly what the parties had respectively undertaken to do, yet there was not one word in regard to these windows, or the enjoyment of light and air through them. There was no express undertaking on the subject, and no breach of the covenant on that account.

Did the right pass under the term "appurtenances" in the lease? If it had been offered to prove that a right to an easement of the kind existed in the lessor, and had been attached to his building, it would most certainly have so passed. In fact it would then have been part of the thing granted, and would have passed as an incident by any terms that would convey the principal. But there was not the slightest attempt to show that this was the case, or that such an easement ever existed by grant, prescription, occupancy, or in any other way. In no case is the ordinary enjoyment of light and air an appurtenance to property; it only becomes so by a right of way or approach derived by purchase — in England by prescription — in modern times by prior occupancy for twenty years. It is thought this doctrine is inapplicable to our country, and has never been adopted as the law of the land. It certainly seems not to be recognised in this Commonwealth. But nothing is predicated of it in this case, as it does not appear that the Columbia Hotel was erected one, or five, or ten years before the new erection. The word "appurtenances" in the lease, therefore, did not apply to light and air in their ordinary descent; and as the lessor had no special property, or a right of passage to his windows over his neighbour's property, it did not pass in that shape.

Had the vacant lot belonged to the lessor at the time of leasing, then an easement by implication, in the passage of light and air, would have followed: Maynard v. Esher, 5 Harris 226; Story v. Odin, 12 Mass. 157. There seems to be no doubt of this. But such an implication exists only in case...