Outerbridge v. Phelps

The present action is not brought by Spofford, but by the plaintiffs, as tenants of Spofford. They show that they are shipping and commission hierchants, transacting business at the offices occupied by them as agents of a steamship company known as the “Quebec and Gulf P.orts Steamship Company,’’ and running numerous steamers from this port to ports in the West Indies and other places; that frequently more than one hundred persons call at their Said offices in the course of a single day to transact business with them; and that free .and convenient access to their place of business is a matter of the greatest, importance to them. They also allege that Broadway is the principal business stréetand thoroughfare in the city of New York; that all the important steamship companies transacting business in this city have their offices either on Broadway or the Bowling Green ; and that the offices occupied by them are valuable to them only because of the entrance thereto from Broadway. They therefore claim that by virtue of their hiring, they are entitled to a right of way through the hall of the-Broad way building, and to the right to affix and maintain their signs upon the Broadway front, and that the defendant cannot deprive them thereof; and they show by the affidavit of Spofford that the latter intended to and did give them these rights as far as he could do so.

If these rights exist in favor of the plaintiffs, whose . lease is subsequent to the mortgage through which defendant’s title comes, and subsequent also to the filing

The general rule undoubtedly is, that where an easement is secured to a dominant estate, and is designed to benefit the same, in whosesoever hands it may be, it will enure to the benefit of the owners of the several parts into which it may be divided, provided the burden upon the servient estate is not thereby enhanced.

At the outset it is important to observe, however, that there being, as was conceded, no right by prescription, the rights claimed must rest in a reservation, in some form or way, to Spofford at the time of his mortgage to Albert and Hickman, in 1873. For, since the execution of that mortgage as a conveyance to secure the payment of the sum named therein, Spofford could convey no rights to the plaintiffs but what were subject to the estate created by that instrument.

It is conceded that the mortgage in question conveyed the premises fronting on Broadway, by metes and bounds in fee, subject only to the conditions of the mortgage, and that it contained no reservation either of a right of way, or of any other right in favor of any of the other premises retained by Spofford ; and as, as a general principle, no reservation is implied

Thus, in Burr v. Mills ( 21 Wend. 290 ), where a man had conveyed without reservation part of a tract of land which was at the time flowed by a mill-dam belonging to him, and had retained the other part on. the stream below, it was held that his right to continue to flow the land conveyed was gone. Cowen, J., states the principle as follows : “After having sold the land absolutely, Nathaniel Burr, the testator, had no right of flowing left which he could devise to his four grandchildren. It can make no difference that there was then a dam built which flowed this land. If a man convey land which is covered by his mill-pond, without any reservation, he loses his right to flow it. There is no room for implied reservation. A man makes a lane across one farm to another, which he is accustomed to use as a way ; he then conveys the former, without reserving a right of way; it is clearly gone. A man cannot, after he has absolutely conveyed away his land, still retain the use of it for any purpose, without an express reservation. The flowing or the way are but modes of use, and a grantor might as well claim to plow and crop his land. If the mill had been first sold by' Nathaniel Burr to another, it would have been different; for the right of the flow would have passed to that other as an incident, and could not then be cut off by the grantor.”

The plaintiffs rely, however, upon the principle enunciated by Seldest, J., in delivering the opinion of the court of appeals in Lampman v. Milks, 21 N. Y. 505 , and upon the reported cases, which, it is claimed, establish a rule similar to that stated in the case ■ first mentioned. • Judge Selden says : “The owner of real estate has, during his ownership, entire dominion and control over its various natural qualities, and may. dispose'of and arrange them at will. He may alter the

“The rule of the common law on this subject is well settled. The principle is, that where the owner of two tenement 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 the sale, to belong to it, as between it and the property which the vendor retains. This is one of the recognized modes by which an easement or servitude is created. No easement exists so long as there is a unity of ownership, because the owner of the whole may, at any time, re-arrange the qualities of the several parts. But the moment a severance occurs, by the sale of a part, the right of the owner to redistribute the properties of the respective portions ceases; and easements or servitudes are created corresponding to the benefits and burdens mutually existing at the time of the sale. This is not a rule for the benefit of purchasers only, but is entirely reciprocal. Hence, if, instead of a benefit conferred, a burden has been imposed upon the portion sold, the purchaser, provided the marks of the burden are open and visible, takes the property with the servitude upon it. The parties are presumed to contract in reference to the condition of the property at the time of the sale, and neither has a right, by altering arrangements then openly existing, to change materially the relative value of the respective parts.”

In that case a certain water-course had been diverted into an artificial channel, thereby freeing from water land, which in that condition was sold to the plaintiff, and upon which he had built a barn ; and it was held that neither the vendor nor his subsequent grantee of the remaining portion could close the artificial channel,

But I am not left to mere inference as to whether the proposition so broadly stated in favor of general reciprocity, was obiter or not; for in the later case of Butterworth v. Crawford ( 46 N. Y. 349 ), in which it was sought to enforce that very doctrine under circumstances which brought it directly before the court, the decision of the case was carefully placed upon a different point, and the court expressly announced that it did not propose to decide the question.

I am therefore at libe'rty to consider the question now before me as one which is open in this State, and which must be dealt with upoq principle rather than upon, authority.

. In the examination of the doctrine as stated—in both its aspects—by Judge Seldeit, in Lampman v. Milks, with a view of supporting it upon principle,. the first point which challenges attention is, that the two converse propositions are very unequally supported. So

True, Gale and Whately on Easements claim that the maxim that no man can derogate from his own grant, though insufficient to account for, is nevertheless consistent with, the principle that the obligation is imposed equally oh the grantee and grantor. But the value of their statement as an authority must, of course, depend upon, and be measured by, the number and weight of the cases which support it.

The numerous cases cited in which the dominant tenement was first conveyed and the implication enforced in favor of the grantee, and all cases in which, the conveyance of both dominant and servient tenements was simultaneous, or the title to both vested simultaneously by operation of law, as, for instance, by descent cast, may therefore be at once dismissed.

This leaves for special consideration: Nicholas v. Chamberlain, Cro. Jac. 131; Pyer v. Carter, 7 Hurls. & N. 916; Davies v. Sear, 7 L. R. Eq. 427; Suffield v. Brown, 9 Jur. N. S. 999 ; and Hazard v. Robinson, 3 Mass. 272 .

In Nicholas v. Chamberlain it was held, upon demurrer, “ that, if one erect a house, and build a conduit thereto, in another part of the land, and convey water by pipes to the house, and afterward sell the house with its appurtenances, excepting the land, or sell the land to another, reserving for himself the house, the conduits and pipes pass with the house, because it is necessary and .quasi appendant thereto; and he

Davies v. Sear was a case of way hy necessity. The house conveyed contained an arch through which a paved passage-way ran to land and a stable in the rear. The case turned not only on the state and condition of the property, but also the notice which defendant had at the time of the' purchase; and it was held, that though the archway to which he took subject, may not then have been a way of necessity, yet, being obviously designed to be one, and bound to become one, and actually becoming one on the completion of a plan for the erection of other buildings in the immediate vicinity, and then in process of erection, a right of way was reserved by implication.

Hazard v. Robinson was a case of water-courses where a right had also survived from a prior user.

In Pyer v. Carter the defendant’s house adjoined that of the plaintiff, and the action was for stopping a drain running under both houses. The two houses had formerly been one, and were converted into two by a former owner, who conveyed one to the defendant and afterwards the other to the plaintiff. At the time of the conveyances the drain existed, and was in use for both houses, running first under that of the plaintiff, next under that of the defendant, and then discharging itself into the common sewer. It was proved that the plaintiff might have a drain direct from his house into the common sewer, and it was not proved that the defendant, at the time of his purchase, knew of the position of the drain. It was laid down by the court that where the owner of two or more adjoining houses conveys one to a purchaser, such purchaser will be entitled to all the benefit of all the drains from the house, and subject to all the drains “ necessarily used'1'’ for the enjoyment of the adjoining hottse, and that, too, without

This case has been much discussed and criticised, and in Washburn on Easements (2 ed. p. 63) the learned author, after reviewing the cases on this subject, states that he considers the doctrine of Pyer «. Carter confined to cases where a drain is necessary to both houses, and the owner makes a common drain for both ; and this arrangement is apparent and obvious to an observer. In Butterworth v. Crawford ( 46 N. Y. 349 ), Rapallo, J., in delivering the unanimous opinion of the court of appeals, approves of the conclusion reached by Prof. Washburn, and adds: “If Pyer v. Carter goes further than that, or, at all events, if it applies to casca where there is no apparent mark or sign of the drain, it is not in accordance with the current of the authorities.”

In Suffield v. Brown (9 Jur. N. S. 999) the owner of a dock adjoining a wharf claimed as an easement that, the bowsprits of vessels in the dock might project over the wharf. The master of the rolle had granted an, injunction on the ground that the wharf and the dock had been once owned and so used together by the common grantor of both parties.

But Lord Chancellor Westbury, in 1864 (10 Jur. N. S. 111), reversed the decree, declaring the law on this branch of the case in the following language;

In the course of his opinion the learned Lord Chancellor declares that Pyer v. Carter is not good law, so far as it seems to establish an implied reservation against a man’s own grant; and he also repudiates the doctrine asserted by Grale & Whately, viz.: that obligation is imposed equally on the grantee and the grantor, and that it is immaterial which of the two tenements is first granted, whether it be the quasi-dominant or quasi-servient tenement, in the following language: “But I cannot agree that the grantor can derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent easements enjoyed by an adjoining tenement which remains the property of the grantor.”

Thus Suflield v. Brown, as finally decided by the Lord Chancellor, is in perfect harmony with Burr v. Mills ( 21 Wend. 292 ), already referred to, and consistent with the point actually decided in Lampman v. Milks ( 21 N. Y. 505 ); and although subsequently, in Davies v. Sear (7 L. R. Eq. C. 427), the same master of the rolls (Lord Romilly) who had originally granted the injunction in Suffield v. Brown, repeated the asser

The next point to be considered is, that all easements and servitudes do not stand upon the same footing.

In Lampman v. Milks (supra) Selded, J., says: “ It is not every species of easement which passes as a matter of course by the conveyance of one of two tenements, or part of a single tenement, by the owner of both or the whole. Easements or servitudes are divided by the civil code of France into continuous and discontinuous. Continuous are defined to be those of which the enjoyment is, or may be, continual without the necessity of any actual interference by man; as a water-spout, or right to light or air. Discontinuous are those, the enjoyment of which can be had. only by the interference of man ; as rights of. way or a right to draw water.

“ Servitudes are also divided by the same code into e apparent ’ and ‘ non-apparent.’ The analogy between the common law and the French code in this respect would seem to indicate, as suggested by Messrs. Gale & Whately, a common origin. The substance of those divisions may be distinctly traced in the common-law cases; and it will be found that those easements which, according to this classification, are termed discon tinuous, pass under a severance of tenements by the owner only when they are absolutely necessary to the enjoyment of the property conveyed. Gale & Whately, after stating the grounds upon which easements are held to pass in such cases, says; 66This reasoning applies to those easements only which-are attended b> some alteration which is, in its nature, obvious and

Of course a right of way may, in an exceptional case, especially if indicated by an artificial structure of a permanent character, constitute an apparent and continuous easement. But as a general rule, rights of way are in their nature discontinuous and non apparent, unless strictly and obviously necessary; and the distinction between rights of way and other easements which from their nature may be deemed necessary is therefore recognised by many other cases, including Lampman t>. Milks.

For these reasons, and the further one that, a right of wa.y arises only from the effect of the grant or reservation of the land itself, provided there is no other way of access to the same, it has always been held, and the law seems to be now settled beyond controversy, that, in the language of the court in McDonald v. Lindall: “ The right of way from necessity over the land of another is always of strict necessity, and this necessity must not be created by the party claiming the right of way. It never exists when a man can get to Ms property through his own land. That the way through his own land is too steep or too narrow does not alter the case. It is only where there is no way through Ms own land that the right of way over another can exist. That a person claiming á way of necessity has already one way is a good plea, and bars the plaintiff” (McDonald v. Lindall, 3 Rawle, 493 ; Stuyvesant v. Woodruff, 1 Zab. 113 ; Felters v. Humphreys, 3 C.

Nor would the rights of a grantor be any more extensive or different though by the terms of his deed lie reserved to himself “away of necessity.” Viall v. Carpenter, 14 Gray, 126 ; and Washburn on Basements shows, by quite an array of authorities, that the right of way of necessity is so limited in respect to its duration that though it remains appurtenant to the land in favor of which it was raised so long as the owner thereof has no other mode of access, yet the moment the owner of such a way acquires, by the purchase of other land or otherwise, a way of access from a highway over his own land to the land to which the way belongs, the way of necessity is at an end; or, in other words, a way of necessity ceases as soon as the necessity ceaseo.

Prom the examination so far made, which included many cases which I do not deem it necessary to mention specifically, I am satisfied that the true rule of law is as follows: Where the owner of two or more tenements sells one of them, or the owner of a n entire estate sells a portion, the purchaser takes the tenement or the portion sold, with all the benefits which appear, at the time of the sale, to belong to it, as between it and the property which the vendor retains. But no burden or servitude can be imposed by the vendor upon the tenement, or portion sold, in favor of the property retained by him in derogation of his grant, without a reservation expressed in the grant, unless an apparent sign of servitude exists on the part of the tenement, or portion sold, in favor of the property retained, and the easement claimed is strictly necessary to the enjoyment of the property retained. In the latter case, visibility and strict necessity must

The rule being as stated, the plaintiffs cannot succeed upon this motion. Not only was there no reservation, but it also clearly appears, and on their own showing, that access can be had to the buildings retained by Spofford, and through them to their offices, from Morris street; and also that, at a comparatively small expense additional, direct and perfectly abundant communication between said street and their offices can be established by the construction of an interior staircase from the ground floor to the second floor of the building in which the said offices are situated. In view of these facts the right of way claimed did not spring into life upon the severance of Spofford’s property 'in favor of the property retained by him, and the plaintiffs can claim no such right.

The element of necessity being wanting, it is not enough that, as claimed by the plaintiffs, apparent signs of servitude existed at the time of the execution of the Albert and Hickman mortgage. Nor is it necessary to determine whether such signs as did exist really constituted apparent signs of servitude, within the rule laid down by the authorities, or were just as insufficient to create an apparent easement as the gate was held to be in Stuyvesant v. Woodruff (1 Zab. 133), or the carriage way in Pheysey v. Vicary (16 M. & W. 484), or the alley way in Felters v. Humphreys (3 C. E. Green [N. J.] 260).

The right claimed to affix and maintain signs upon the Broadway front of defendant’s building, if not still more indefensible, stands upon the same footing as the right of way claimed, even when considered as an independent right, and not merely as one which is incidental as a guide to an existing right of way. If it survived a severance, it would, as tenants would move into or out of the buildings retained by Spofford,

But I cannot see how, in a case like the present, it can be said that the existence of the right claimed is necessary to the enjoyment of the demised premises. The plaintiffs’ tenement is bounded by its four walls; and though for the transactions therein it- may be more advantageous, or even necessary, that the premises occupied by them should appear to be Broadway property, jet such a requirement on the part of their business does not in any legal or proper sense constitute a necessity for the proper enjoyment of the premises. Matters necessary for the proper enjoyment of demised premises, and matters necessary for the profitable transaction of a certain business therein, are altogether different things. Between landlord and tenant no contract oi’ warranty on the part of the landlord that the premises demised shall be or continue fit for the tenant’s business is ever implied from the mere fact of letting. None can, therefore, be implied against Spofford from the mere fact that he rented to the plaintiffs the offices occupied by them. How, then, can such an implication arise. against the defendant, whose position is still stronger % If the plaintiffs stand so much in need of premises fit for the purposes of business usually transacted on Broadway, they should be left to secure them directly.

Upon the whole case, therefore, it- clearly appears that the plaintiffs, as tenants whose rights are in all respects subsequent and subject to those acquired by

The motion of the plaintiffs for the continuance of the injunction should be denied, and the preliminary injunction dissolved, with $10 costs.

The action subsequently came on for trial on the merits before Justice Sedgwick, sitting at the special term, without a jury.

id M. Scott, for plaintiffs.—I. At the instant of a severance of the extension from the front, the extension became the dominant tenement, and the front the servient tenement (Lampman v. Milks, 21 N. Y. 505 ; Simmons v. Cloonan, 47 Id. 3 : 81 Id. 557 ).

II. The severance was made through the instrumentality of the release of the front portion, which so operated as to be tantamount to a. conveyance—a mortgage is a conveyance.

III. An easement in the hall-way passed by the release (Huttemeier v. Albro, 18 N. Y. 48 , 51). Parsons v. Johnson, 68 N. Y. 62 , 65, is inapplicable here.

IV. The defendant acquired no title to the division wall between the front and rear extension, and had no right to close the doors in the wall.

V. The plaintiff should have the relief sought, as he stands in his lessor’s right (Hills v. Miller, 3 Paige Ch.

VI. Lampman v. Milks, 21 N. Y. 505 , states the general doctrine correctly, but is in error in classifying a “right of way,” as always a “discontinuous easement.” Judge Seldek evidently had before him the American edition of “ Gale & Whately,” 1840. The later English edition changes somewhat the classification (p. 91; p. 112, note, Glave v. Harding, 27 L. J. [pt. 2] Exch. 287, 292). The courts of this country have uniformly held that rights of way, if the marks thereof are obvious and apparent, and- die way appears to have been intended to be permanent, will pass or attach as easements on the severance of an estate (United States v. Appleton, 1 Sumn. 492 , 500; Keiffer v. Mihoff, 26 Penn. 438 , 442; Huttermeier v. Albro, 18 N. Y. 48 ; Phillips v. Phillips, 48 Penn. 178 ; Thompson v. Miner, 30 Iowa, 386 ). The servitude imposed in this case was continuous and apparent, and necessary for the enjoyment of the dominant tenement.

George De Forest Lord (Lord, Day & Lord, attorneys), for defendant.—I. The plaintiffs’ claim is preposterous,—that by some alterations by Spofford some rights were created in favor of the insurance company, and that they stand in Spofford’s shoes.

II. The right of way claimed is not a “way of necessity;” such a “ way” arises only when there is no other (Washburn’s Eas. & Serv. 3rd ed. 233; Staple v. Hayden, 6 Mod. 1, 4). And this is so even when the other way is inconvenient (Allen v. Kincaid, 11 Me. 185 ; Thayer v. Payne, 2 Cush. [56 Mass.] 327, 332; Feiters v. Humphreys, 3 C. E. Green [N. J. Eq.] 260).

III. No reservations are implied in a grant (Burr v. Mills, 21 Wend. 290 ).

Y. The use claimed to be reserved is not to be implied (Goddard on Easements, 115-127). The deduction from Pyer v. Carter, 1 Hurlst. & N. 916, is bad law (see Suffield v. Brown, 10 Jur. N. S. 111; Crosley v. Lightowler, 15 Week. Rep. 801; Wheeldon v. Burrows, 28 Week. Rep. 196). Lampman v. Milks, 21 N. Y. 505 , was decided before Pyer v. Carter had been questioned. No American case cited supports the doctrine of Judge Selden, in Lamp man v. Milks, for in all the cases cited, the dominant tenement had been conveyed first, and the implication of an easement was made in favor of the grantee and against the grantor (Simmons v. Cloonan, 81 N. Y. 557 ). Butterworth v. Crawford ( 46 N. Y. 349 ) avoids following Judge Selden's dictum. The two cases, United States v. Appleton, 1 Sumner, 492; Huttemeier v. Albro, 18 N. Y. 48 ; are considered and fully explained in Parsons v. Johnsons, 68 N. Y. 62 , and in Fetters v. Humphreys, 4 C. E. Green (N. J. Eq.) 471. There is no authority, of any binding force, supporting the theory that where the servient tenement is first conveyed any easement will be implied in favor of the dominant tenement remaining in the grantor’s hands (Goddard on Easements, 115,127).

YI. But even if Judge Selden’s dictrtm in Lampman v. Milks ( 21 N. Y. 505 , 516) had been sustained, it could not apply here. The easement, which Judge Selden declares to be reciprocally granted to a purchaser, and reserved to the grantor upon a severance of two tenements, are what are known as continuous and apparent “easements,” whereas, he admits ( 21 N. Y. 516 ), “that discontinuous easements pass only when they are absolutely necessary to the enjoyment of the property conveyed.” On p. 515 he classified “rights of way” among those easements which were discon

My examination of this case has brought me to the same result that Judge Fkeedm.ix reached in his decision of the motion for the temporary injunction. I also agree with him in the particular reasons he gave for his decision and his views of the cases he cited. I therefore adopt his opinion, and shall only farther state one aspect of the cases presented hy ■ the facts in testimony.

Huttemeier v. Albro ( 18 N. Y. 48 , 51), and other cases, not necessary to cite, state the cardinal rule that whether a right of way or other easement is embraced in a deed, is always a question of the construction of the deed and having reference to its terms and the practical incidents belonging to the grant or the land at the time of the conveyance. Plainly, this rule is very useful in guarding against a disregard of the language of the grant, and in requiring an entire observation of the intent of the parties. I venture, however, to think that it is not immediately applicable, formally, to a case like the present, when the easement or right of way—if it exists at all—exists upon the land described in the deed, and yet it is not specified in it.

This is well illustrated in the extreme case of the way of necessity. The owner of land shut in by a piece of land conveys that land, with no mention of a right of way over it. No possible construction of the deed will find the right of way in in or even a reservation of the right of way. Nor does the necessity create the way. It is merely evidence of the intention of the parties (French v. Carhart, 1 N. Y. 96 , 103). The matter evidenced by it, must be a grant of the right of way by the grantee after he has become owner of the land.

This is not a mere technicality; it is a necessary process to preserve the system of the law in regard to competent methods of alieniating real property. An easement can only be conveyed like other real property, by writing, and in some' cases the existence of this writing may rest upon presumption.

In a case where the grantor attempts expressly to reserve a right of way over the land he has granted, it is said (1 Saunders, 333) that a right of way ‘‘ reserved,” using that word in a somewhat popular sense, to a grantor or lessor, is' in strictness of law an easement, newly created by way of grant from the grantee or lessee. Such a reservation expressed in writing shows what the intention of the parties is.

But when no reservation is expressed, but is to be only implied from circumstances, it is manifest that in ño case can greater caution be demanded against

Assuming, however, that something less than a strict necessity may indicate the intention of the parties to create the easement, an examination of the facts satisfied me that they do not show any such intention.

As it must, necessarily, be created according to the intention of both parties, while it is in strictness the peculiar presumed grant of the grantee, inasmuch as the words and legal import of the grant make him in every sense the absolute owner of the land without any incumbrance, it is proper, in the first place, to observe what would be the effect of the proposed way upon his premises. It is not at all in its effects like the familiar case of a way over the soil; it is through the interior of the house. On the point of the intent of parties, it is not immaterial or irrelevant to notice that such a thing is so rare in this city that it is highly improbable that the one side would claim it as a right, or the other side would be conscious that such a claim could be made, especially when the deed made no reference to it. But we further observe that suck a way would materially lessen the scope of the control an owner habitually exercises over his own house. Hia improvements, and his re-arrangement of the interior of the house, must at all times be subordinate to keeping open the way. That would be a fixed line, not to be varied. The personal property within the house would be exposed to trespass and depredation to an extent indefinitely increased by the proposed easement. The risks of fire would be greater, and insurance premiums increased in proportion. The difficulty of raising money by mortgage would be increased. The wear and tear of the hall-way would be

These disadvantages, borne by the house in question, might be, and probably were, compensated by the advantages conferred upon the houses. The common owner, as long as he held them together, could satisfactorily make an -arrangement that, take it altogether, was for his interest. And this leads to the remark, that the so-called easement, or the right of way, did not make an exception to other rights of way in being continuous. It was a part of a system which was whole, and was apparently devised for the houses so long as they should be held by one owner. It was, by appearances, to be used so long as the houses were undivided. There was no suggestion in the facts that when the front house should be conveyed it'was intended that it should bear its separate burden of the hall-way for the benefit of the other herein.

It was submitted by the learned1 counsel for the plaintiff, that if the corner house, by the force of the circumstances, was held to the burden of the easement claimed, it had a corresponding right to claim that arrangement of halls and stair-cases of the houses to the west should be maintained permanently.'for its benefit. This, however, in my opinion, shows that a buyer would not perceive that it was meant that the hall-way of the front house should continue to run into the other houses ; for it would,call for a strained effort of the imagination to make a claim that the house to the west should never be detached, whatever were the future exigencies.

On the other hand, what claim did the facts make in behalf of the former owner ? He would lose, by the discontinuance of the hall-way, an advantage he could present to his tenants ; but apparently there would be

On the whole case, it appears to me that the arrangement of the hall and stair-cases embodied the opinion and judgment of the owner of the whole as to the best way of making the premises valuable to him so long as he held them together; and in so far as it seemed to be moulded by opinion and judgment, it did not claim for itself any immutability. Clearly, it did not rebut the propriety or the fitness of an alteration after the Broadway house should be separated by a conveyance.

A consideration of these facts does not lead to the inference that the parties had the intention, in fact, of continuing the way through the hall now claimed ; or, to state the matter in a different form, the use of the property retained is not so much affected by a discontinuance of the way that a presumption of a grant is created.

For convenience, the mortgage which is the instrument by which the rights of the parties is to be ascertained has been treated as if it were an absolute conveyance.

For these reasons, the complaint should be dismissed, with costs.