Heartt v. Kruger

• Decision Date: 03 June 1890
• Citation: 121 N.Y. 386,24 N.E. 841
• Parties: HEARTT v. KRUGER.
• Court: New York Court of Appeals Court of Appeals

121 N.Y. 386

24 N.E. 841

HEARTT

v.KRUGER.

Court of Appeals of New York.

June 3, 1890.

Appeal from superior court of New York city, general term.

John Hardy, for appellant.

James J. Thomson, for respondent.

GRAY, J.

The plaintiff and defendant are owners of adjoining lots of land in the city of New York; and their litigation, in the shape of an action of ejectment, is over the question of whether or not their tenements are subject to a perpetual party-wall easement, dominant as to the defendant's, and servient as to the plaintiff's, properties. This question, as it is presented by the case before us, does not seem to have arisen before in our courts, though there are several reported cases which, I think, suggest the principle of decision. Some are referred to in the well-considered opinion of Judge INGRAHAM (5 N. Y. Supp. 192) speaking for the general term below. I think, indeed, we might leave the decision of this case with his opinion, were it not for the importance which, perhaps, the question involved possesses for real-estate owners in cities. That consideration fairly warrants some expression of the views which lead us to uphold the judgments of the courts below.

In 1874 these lots were owned by one Burchell. He erected upon them two buildings five stories in height, with a party-wall dividing them of twelve inches in width. He conveyed both premises to one Falk; and took back from his grantee a mortgage on the lot now owned by this defendant, which described the westerly line of the lot as ‘running southerly and parallel with Tenth avenue, and partly through the center of a party-wall fifty feet and fiveinches to the northerly side of 54th street.’ With this conveyance of both lots, and the contemporaneous mortgaging of one of them, commencedthe severance of the tenements; and, whatever rights of easements have existed with respect to the division wall, which partly supported both houses, they took their rise and form in those transactions. Through the conveyance upon a foreclosure sale of the mortgaged premises and other mesne conveyances, the defendant acquired his title. In 1887 the buildings on both lots were wholly burned down, and only the foundation or cellar wall remained, upon which had been erected the party-wall; and it was while the premises were in that condition that this defendant became their owner. He then built upon them, erecting upon the old foundation wall a party-wall two stories high, and of the same thickness as the former one. This erection of the new wall partly upon the adjoining lot was without any other right in the defendant than was to be found in the conditions of his title. There is some pretense of an estoppel upon the plaintiff by reason of interviews with her husband upon the subject of rebuilding, but there is no foundation for that defense, or for the defense of acquiescence; and we need not stop to consider that feature.

The question thus arises as to whether, after the destruction of the buildings by fire, any right remained in the defendant, as appurtenant to his property, under which he could claim the continuance of an easement in the plaintiff's property for the support of another party-wall. Where will we find the legal foundation for such a claim? There had certainly been no agreement, and there was no express grant of any easement in the land by the common owner, Falk; and I do not see how any grant arose by implication from his mortgaging the lot now owned by the defendant. The only language in the mortgage capable of such an implication was in the description of the westerly boundary, which I have quoted above. That, however, was merely language of description, and, while sufficient to create a servitude in the adjoining lot for the purposes of the existing party-wall, was insufficient to predicate any grant of a perpetual easement upon. It was merely the statement of the fact that the dividing line of the two lots ran through the centerof what was a party-wall, so that the claim of the defendant to a continued easement in the plaintiff's land must depend wholly upon this reasoning, namely, that a party-wall had formerly existed there, and that, because the foundation wall remained, that fact sufficed to preserve unimpaired the right to a reconstruction of a party-wall. The defendant insists that the wall did not cease to be a party-wall after the fire, and he cites in support of his position Brondage v. Warner, 2 Hill, 145. His argument amounts to this, in effect: that, if any fragment of the wall was left, or if only the foundation or cellar wall upon which it stood remained, in the legal vision the party-wall still stood, with its accompanying burden or benefit to the adjoining properties. But that I consider a doctrine untenable, and clashing with the doctrine of property rights in land. Brondage v. Warner, supra, affords no support for it; for there the defendant's right to use and occupy the wall in question lay in grant. The deed under which the...