Reiners v. Young

• Decision Date: 24 April 1888
• Citation: 16 N.E. 368,109 N.Y. 648
• Parties: REINERS et al. v. YOUNG.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 648

16 N.E. 368

REINERS et al.

v.YOUNG.¹

Court of Appeals of New York.

April 24, 1888.

Appeal from general term, supreme court, Second department.

Ejectment by John Reiners et al. against John M. Young. Judgment for plaintiffs in the lower court was reversed in the supreme court, and from this decision plaintiffs appeal.

J. Stewart Ross, for appellants.

Wm. H. King, for respondent.

GRAY, J.

By the pleadings in this action the controversy between these litigants is made to turn upon a single question, and that is whether the defendant has made out any right to an easement. It appears from the map that the westerly wall of his house, and the westerly fence of his lot, are upon the land of the plaintiffs. The plaintiffs in their complaint allege their ownership of the fee in the land, and that possession thereof is unlawfully withheld from them by the defendant. The defendant admits plaintiffs' allegation of ownership, and explicitly alleges that he does not now claim, nor has at any time claimed or asserted, title to or ownership in any portion of the premises to which plaintiffs lay claim in their complaint. The answer further sets forth that the building now standing on his premises was erected formerly by one North, who at the time was the owner of his lot, and also of the lot next adjoining on the west, which included the strip in question, and that, while such owner, North conveyed the lot owned by the defendant to one Hill, through whom defendant's title is derived. The answer further shows that the present building is now as it was erected by North, and that it was so erected by him ‘with full power and authority to do so.’ The plaintiffs acquired title to their lot, unimproved, subsequently to North's conveyance to Hill, and after their acquisition discovered, through a survey of the premises, that the west wall of defendant's house, and his west fence in the rear, stood upon their lot to the extent of a few inches.

It is questionable whether the defendant's pleading sufficiently sets forth any defense to the plaintiffs' claim. His argument is that he has an easement in the overlapping wall because it was built by the owner of the entire premises, and he invokes in support of his contention the rule at common law, as stated in Lampman v. Milks, 21 N. Y. 505, that when the owner of two tenements sells one of them, or the owner of an entire estate sells a portion, the purchaser takes the tenement or portion sold with all the benefits and burdens which appear at the time of sale to belong to it as between it and the property which the vendor retains. But neither on the pleadings nor the proof does he make out any right by grant or implication for the advantage of his piece of land in or over the adjoining lot, and, therefore, the elements necessary to constitute an easement or servitude are wanting. An easement is the right which one proprietor has to some profit, benefit, or lawful use out of or over the estate of another proprietor. Where it does not originate in fraud, it should be found to exist in the agreement, express or implied, of the owner of the servient tenement. Gale, Easem. 23-81. In the present case there was certainly nothing in the grant of defendant's premises upon which he can found any claim that an easement was annexed to his estate which constituted a charge upon the plaintiffs' estate in respect of the overlapping wall and the fence. His deed is singularly wanting in those features of a grant usually found in transfers of land upon which buildings have been erected, and to which rights might appertain. The description in his deed of the premises intended to be conveyed thereby is simply of a lot by its metes and bounds, with no mention of buildings, while the habendum clause does not include appurtenances in its language. W...