Stolts v. Tuska — 76 A.D. 137

Majority

p. 137

Julius W. Stolts, as President of J. & J. W. Stolts, an Association Organized and Existing under and by Virtue of the Laws of the State of New York, Appellant, v. Morris Tuska and Others, Respondents.

Headnote

Demise with the right of access to a waterfront and of the me of a dock—subsequent lessees of such dock are subject thereto in the inverse order of the dates of their leases—an existing adjoining street must be used to obtain access thereto, if practicable.

On January 28, 1892, one Tuska was the owner of a tract of land in the city of New York, bounded on the north by One Hundred and Sixth street, on the east by the East river, on the south by One Hundred and Fifth street and on the west by a line' parallel with, and 363 feet easterly from, First avenue.

A private driveway extended through the parcel from One Hundred and Fifth to One Hundred and Sixth street, and a dock had been built along the water front extending from One Hundred and Fifth to One Hundred and Sixth street. Fences had been constructed along the northerly line of One Hundred and Fifth street and along the southerly line of One Hundred and Sixth street, extending "from the private driveway across the dock to the bulkhead. The portion of the dock at the foot of each of the two streets had been appropriated to the public use.

On the day above mentioned Tuska leased to J. & J. W. Stolts, a manufacturing association, the portion of the tract lying westerly of the driveway, “ Together with the right to use a certain driveway, to the east of the property herein-above leased, and with a right of access to some point of water front and dock for the purpose of receiving materials to be used in the business of the tenant, and of shipping its manufactures, provided, ■ however, the tenant shall at no time encumber or obstruct said ways or any part of said water front and dock, and will expeditiously ship or remove all merchandise brought to said water front.”

June 12th, 1902, he executed a lease of the southerly half of the easterly portion of the premises, lying between the driveway and the East river, to one Jackson, and on July 1, 1902, leased the northerly half of such premises to one Wright. After the execution of the leases to them, Jackson and Wright each obstructed the association’s access to the dock across the premises leased by them respectively, and each claimed an exclusive right to that portion of the dock covered by his lease.

The Stolts association thereupon brought an action against Tuska, Jackson and Wright to have the alleged right of way, contained in its lease, established and located and to obtain an injunction restraining the defendants frorn interfering with its access over such right of way.

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Upon an appeal from an order refusing to grant an injunction pendente lite, it was

Held, that the lease to the plaintiff secured to it access to and the use of the dock and that such grant was not void for indefiniteness, although the right of way was not described or definitely located;

That if the easement, secured to the plaintiff in the lease, required that it should have a right of way over the premises leased to Jackson or Wright, the rule of inverse order of alienation would apply and the burden of such easement would fall upon the defendant Wright;

That if that part of the dock which was leased to the defendant Wright should prove inadequate for the requirements of the plaintiff it was also entitled to use the portion leased to the defendant Jackson, so far as necessary;

That the recording of the lease to the plaintiff was constructive notice to Wright and Jackson of the plaintiff’s easement in the premises leased to them;

That as the plaintiff had not shown that reasonable access to the dock would not be afforded by the removal of the fence at the northerly end of the dock along the line of One Hundred and Sixth street, the plaintiff should be granted an injunction pendente lite restraining the defendants from obstructing the plaintiff’s access to the dock from One Hundred and Sixth street by fences or otherwise, and from using so much of the entire dock as should be necessary for the purposes of receiving materials and shipping manufactured products.

Appeal by the plaintiff, Julius W. Stolts,' as president of J. & J. W. Stolts, an association organized and existing under and by virtue of the laws of the State of Mew York, from an order of the Supreme Court, made at the Mew York Special Term and entered in the office of the clerk of the county of Mew York on the 11th •day of September, 1902, denying the plaintiff’s motion to continue, pendente lite, a preliminary injunction restraining the defendants from interfering with the plaintiff in unloading merchandise upon or shipping the same from the private dock mentioned in the complaint, or from interfering with the access of the plaintiff association to said private dock from the private driveway over certain intervening lands.

The action was brought to establish and locate an alleged right of way across certain • premises leased to the defendants Jackson and Wright and to restrain them from interfering with the plaintiff’s use thereof and of a dock likewise leased to such defendants.

Charles M. Demond, for the appellant.

Benjamin Tuska, for the respondent Tuska.

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Frederick Hulse, for the respondent Jackson.

Frank M. Tichenor, for the respondent Wright.

On the 28th day of January, 1902, the defendant Tuska, then being the owner of premises bounded by One Hundred and Sixth street, the East river, One Hundred and Fifth street and a line parallel with First avenue and 363 feet distant easterly therefrom, leased the westerly 200 feet thereof to the plaintiff for a period of twenty years from the 1st day of January, 1902. Immediately east of the premises thus leased a private driveway extended from One Hundred and Fifth to One Hundred and Sixth street. A dock owned by the landlord extended from One Hundred and Fifth street to One Hundred and Sixth street along the water front. Fences extended along the northerly line of One Hundred and Fifth street, along the southerly line of One Hundred and Sixth street from the private driveway across the dock to the bulkhead. The property was leased to the plaintiff as a plant for manufacturing caskets and undertakers’ supplies. In the lease immediately following the description of the premises, and separated therefrom by a colon, is the following clause:

“ Together with the right to use a certain driveway, to the east of the property hereinabove leased, and with a right of access to some point of water front and dock for the purpose of receiving materials to be used in the business of the tenant, and of shipping its manufactures, provided, however, the tenant shall at no time encumber or obstruct said ways or any part of said water front and dock, and will expeditiously ship or remove all merchandise brought to said water front.”

On the 4th day of June, 1902, the defendant Tuska entered into an agreement with the defendant Jackson whereby he agreed to lease to Jackson the southerly half of his premises. lying between the driveway and the East river, and a lease thereof pursuant to said agreement for nineteen years and a half was executed on the 12th day of June;, 1902. The premises to the north of those thus leased to Jackson, extending to One Hundred and Sixth street, were leased by the defendant Tuska to the defendant Wright on-the 1st day of July, 1902. Between the date of the lease to the plaintiff

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and the time Jackson and Wright became the lessees, it appears, without controversy, that the plaintiff, his agents and servants, passed back and forth across the premises intervening between those leased to him and the dock and used the dock so far as his said business required. There is a sharp conflict between the parties as to the manner in which this right was exercised. It is contended by the plaintiff there was a practical location of the right of way; that he and his landlord had an understanding shortly after the execution of his lease by which he was to have a passageway about twelve feet in width extending from the private driveway easterly along a line midway between One Hundred and Fifth and One Hundred and Sixth streets to near the dock and then extending northeasterly intersecting the bulkhead near One Hundred and Sixth street; and that lie exercised a right of way over this strip of land for about three months prior to the execution of the lease to the defendant Wright. - This is controverted by the defendants, and we shall determine the' appeal upon other grounds.

Since the execution of the leases to the defendants Jackson and Wright, they have each obstructed the plaintiff’s access to the dock across the premises leased' by them, respectively, have denied his right to such access, and the defendant Wright has obstructed his use of the dock and each of the defendant lessees has claimed an exclusive right to the use of that part of the dock' covered by their respective leases. After the alleged practical location of the right of way between plaintiff and his landlord, it would seem that he only made use of the northerly end of the dock, and that, if unobstructed, this was ample for his requirements.

The defendant. Tuska is the successor in title to a grant from the owner of the upland of the right to the water front, and also to a grant from the city of the wharfage rights and privileges from the middle of One Hundred and Fifth street to the middle of One Hundred and Sixth street. The city, however, reserved the right to appropriate for public uses that part of the wharf or dock which its grantee covenanted to build at the foot of each of these streets. Under this reserved authority the city, prior to the execution of the lease to the plaintiff, appropriated the foot of each of these streets for a public dock or wharf.

It is claimed that the plaintiff obtained no right of way and no

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right to the use of this dock under his lease. It appears that the defendant Tuska at the time owned no other water front. "W e think it clear that the clause quoted from the lease refers to the dock from which the "plaintiff has been excluded. It is equally clear that the landlord covenanted to afford access to the dock over his premises. This grant of an easement, although the right of way is not described or definitely located, is not void for indefiniteness. (Crocker v. Croeker, 5 Hun, 587 .) If reasonable access can be had over One Hundred and Sixth street by removing the fence that may answer the requirements of the lease. As between the plaintiff and his landlord, he had the absolute right to the use of so much of that dock as might be necessary for the purposes and within the limitations prescribed in the lease, and he also had the absolute right to reasonable access to the same over the premises of his landlord.

The defendant Jackson was aware of the terms of the lease to the plaintiff at the time he took a lease from defendant (Tuska, but he contends that, inasmuch as no definite right of way was specified in the lease, any right of way which would afford the plaintiff reasonable access to the dock would be. a fulfillment of the covenant, and that, since such access could be had over the remaining premises to the north, he should not be burdened with such easement. So far as the right of way is concerned, we think this contention must be sustained, but if that part of the dock which was leased to defendant Wright should prove inadequate for the requirements of the business conducted by the plaintiff, he is also entitled to the use of the dock leased to the defendant Jackson so fai’ as necessary.

The defendant Wright does not appear to have had actual notice of the plaintiff’s rights. The lease to the plaintiff, however, was duly recorded on the 29th day of January, 1902. In effect, Tuska granted to the plaintiff an easement in the premises owned by him and lying easterly of the private driveway. Under the Recording Act (Laws of 1896, chap. 547, §§ 240, 241) this lease is constructive notice to Wright, who acquired his rights subsequently thereto.

If the fulfillment of the covenant contained in the lease to the plaintiff requires that he have a right of way over the adjoining premises, applying the rule of inverse order of alienation applicable to the sale of premises under mortgages on real estate, which we

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deem applicable by analogy, the burden of that easement should, under the circumstances, fall upon the defendant Wright. Whether the fulfillment of this grant requires such right of way cannot be determined from the evidence in this record and it must be left to be determined on the trial of the issues.

The rights of the appellant to the use of this dock and reasonable access thereto are plain and depend upon uncontradicted facts; but he has not made it appear satisfactorily that reasonable access to the dock will not be afforded by the removal of the fence at the northerly end of the dock along the line of One Hundred and Sixth street.

The order must, therefore, be reversed* with ten dollars costs and disbursements, and the motion should be granted, with ten dollars costs, to the extent of enjoining the defendants, and each of them, from in any manner obstructing, by fences or otherwise, access to the dock.by the plaintiff, his agents and employees, from One Hundred and Sixth street, for the purpose of receiving materials to be used in the business of plaintiff and of shipping its manufactures; and from in any manner obstructing the plaintiff’s use of the dock along the water front extending from the southerly line of One Hundred and Sixth street as far as necessary for such puposes-; and from obstructing the plaintiff from having access to and from said dock from the water by boats, barges or otherwise for said purposes, until the further order of the court.

Van Brunt, P. J., Patterson, O’Brien and McLaughlin, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion granted to the extent stated in opinion, with ten dollars costs.