Newhoff v. Mayo

• Decision Date: 17 November 1891
• Citation: 48 N.J.E. 619,23 A. 265
• Parties: NEWHOFF v. MAYO et al.
• Court: New Jersey Supreme Court

23 A. 265

48 N.J.E. 619

NEWHOFF

v. MAYO et al.

Court of Errors and Appeals of New Jersey.

Nov. 17, 1891.

(Syllabus by the Court.)

Apppeal from court of chancery; Van Fleet, Vice-Chancellor.

Suit by Benjamin J. Mayo and others against Anna Newhoff to restrain her from obstructing a certain passage. Decree for plaintiffs. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by Magie, J.:

On November 1, 1854, the Third Presbyterian Church of Newark leased to Stephen Ford and Thomas Maplesden a lot on Broad street, in Newark, of 41 1/2 feet wide, by 166 feet deep, for a term running to May 1, 1868. At the date of the demise lessees owned a frame building standing on the premises covering the whole front, and extending in depth about 80 feet. The lower part thereof was occupied by a store. The upper part was occupied as a dwelling, and access thereto was obtained from Broad street by a stairway in a hall extending along the north side of the building, and by transverse passages above. By the terms of the lease the lessees might renew for the further term of 20 years, at a rent to be agreed on or fixed by arbitration, and, if they did not renew, they might remove the building within a reasonable time after the expiration of the term, unless the lessor would pay them its value, to be fixed by arbitration. On April 13, 1855, Maplesden assigned to Ford all his interest in the building and term. On October 28, 1867, Ford sold, and by a deed inter partes conveyed, to Charles Garrabrant a part of the demised premises, of 18 feet width, on Broad street, and extending for a depth of 100 feet along the north line of the premises. The stairway, hall, and part of the transverse passages were in that part of the building, and the deed, which was executed by both parties, contained the following clause, viz.: "Subject, nevertheless, to the following reservations and conditions: That the hall extending back twenty eight feet, and the stairway leading into the dwelling and upper part of the premises hereby conveyed, and the part now owned by said Stephen Ford, lying; southerly of said last-described premises, shall be kept open and unobstructed for the use of said parties and their families, tenants and servants; and that said Ford, his family, tenants, servants, and legal representatives, shall have the right to use the stairway, passage, and cross-hall to and from any part of the premises owned by him adjoining the premises hereby conveyed; and with the further reservation that the partitions in the third story of the building on the premises hereby conveyed shall remain as they are at this time, unless said building should be destroyed." On April 28, 1868, the church renewed the lease for the whole premises to Ford and Garrabrant as tenants in common for 20 years from May 1, 1868, upon terms as to further renewal and removal of the building like those contained in the lease first described. By an agreement of September, 1869, between Ford and Garrabrant, the latter was permitted to reduce the width of the hall, but it was expressly agreed that the conditions and reservations in Ford's original assignment to Garrabrant should remain otherwise unaffected. On January 3, 1870, Ford sold and assigned to respondent Mayo the remaining front of the demised premises for a depth of 100 feet, together with the right and privilege reserved in the assignment to Garrabrant. Mayo used the lower part as a store, rented the upper stories, and he and his tenants gained access thereto by the passages in question. Ford had previously made similar use thereof. On January 14, 1874, Ford, being one of the lessees of the whole premises, made another deed to Garrabrant, assigning the same interest which had been assigned by the deed of October 28, 1867, but subject to the conditions and reservations contained in that deed, to which it referred. In April, 1868, the church gave a lease to respondent Mayo for that portion of the premises which he had acquired by his assignment from Ford, and the lease contained like provisions respecting the removal of the building. Garrabrant's interest in the premises was sold under execution, and bought by his wife. In February, 1888, she and her husband, in writing, relinquished their rights to appellant, to whom the church, by another lease, gave a further term of 20 years from May 1, 1888, in that part of the premises which Ford had assigned to Garrabrant. This lease recited the facts, and particularly referred to the abovementioned deed of January 14, 1874, as the source of Garrabrant's right of removal, relinquished to appellant, and the lease was expressly declared to be a renewal of a part of the original lease. In November, 1889, appellant obstructed the passages and cut off the access of Mayo and his tenant to the upper part of his building. The prayer of the bill was that appellant might be restrained from such obstruction.

Elias F. Morrow, for appellant.

F. W. Stevens, for respondents.

MAGIE, J., (after stating the facts.) This cause was heard below upon the bill alone, no answer having been put in thereto. The allegations of the bill are therefore to be taken as true, and the only question here is whether, upon the facts alleged, the decree is erroneous. The decree enjoins appellant from interfering with the use by respondent Mayo, his family, tenants, servants, and legal representatives, of certain stair and passage ways in a building in Newark, and from obstructing such ways to their injury. The facts alleged in the bill are set out with great particularity in the opinion of the learned vice-chancellor, but, as a statement of some of them seems necessary to explain my views, a brief resume precedes this opinion. On behalf of appellant it was contended that the building in question is a mere personal chattel, and that in such a chattel no easement of way in favor of one part thereof over another part thereof can be acquired. When a building has been erected by one on lands of another, upon an agreement, express or implied, that it may be removed at the pleasure of the builder or on the demand of the land-owner, the building Is, no doubt, to be classed in that division of property which we call "purely personal." Pope v. Skinkle, 45 N. J. Law, 39. But in this case the...