Empire Bridge Co. v. Larkin Soap Co.

The defendant demurs on the alleged ground that the complaint fails to state a cause of action. ■ The action is one in equity, and prays for a decree to enforce the plaintiff’s alleged right of way over the defendant’s property to a public street. For 'an understanding of the respective situations of the properties owned by the parties reference must be had to the map attached.

The plaintiff alleges it is the owner of parcel A, and that the defendant is the owner of C and D, and that the plaintiff has no access to any public street except over parcels C and D; that prior to the 1st day of January, 1891, parcels A, C, and D were all owned by Charles A. Sweet; that on January 1, 1891, said Sweet conveyed parcels A and C to one Sidney E. Adams; that parcels A and C did not then nor do they now abut upon any street; that said deed from Sweet to Adams contained a covenant in the following words, to wit:

“The party of the first part agrees that in disposing of the remaining land now owned by him, of which the lands hereby conveyed is a part, that he will provide the right-of-way to Seneca street by laying out and dedicating for public use a street or streets to form or make such right-of-way.”

We must assume for the purposes of the decision that there exists no access to the street from A except over C and D. There can, we take it, be no question that, when Sweet conveyed A and C to Adams, a right of way by necessity was given to Adams, the grantee, to pass over D to Seneca street. The language of the covenant in the deed quoted appears to recognize such right, because it reads that he (Sweet) “will provide the right of way to Seneca street,” etc., thereby assuming such a right to exist. This right of way was an easement in favor of A and C, which ran with the land, and, in turn, passed to Adams’ grantees, under well-known rules of law. It now appears that A and C, formerly constituting one parcel, was by subsequent conveyances divided into separate parcels. The complaint does not disclose how or when. The complaint simply alleges that parcel A became the property of the plaintiff and parcel C the property of the defendant. For all that appears in the complaint, Adams may have conveyed parcel C prior to his conveyance of parcel A; and it has been argued that in such case he would have no right to'assert a right of way for the

So far as this case is concerned, it is immaterial whether A or C was first alienated, for in each case the law imposed an easement on C for the benefit of A. If the owner of an estate grant a portion of it to another, leaving other lands of the grantor to which he can have access only by passing over the land granted, a way of necessity is reserved in the grant by implication. 14 Cyc. 1176; Brigham v. Smith, 4 Gray (Mass.) 197 , 64 Am. Dec. 76 ; Outerbridge v. Phelps, 13 Abb. N. C. 117 ; McTavish v. Carroll, 7 Md. 352 , 61 Am. Dec. 353 ; Fritz v. Tompkins, 18 Misc. Rep. 514 , 41 N. Y. Supp. 985 . Even a deed of warranty does not estop the grantor from asserting the right to such an easement. Brigham v. Smith, 4 Gray (Mass.) 297 , 64 Am. Dec. 76 . This seems to form an exception to the general rule that a grantor is not to be heard to assert any right in derogation of his covenants. We must then assume that the owner of parcel A acquired an easement of access over C, in order to pass from C over D to the street, whether the way over D be by a public street agreed to be laid out in Sweet’s deed or by virtue of a private easement for the benefit of the owners of A and C alone. If parcel C, therefore, became subjected to an easement for the benefit of A, any grantee of parcel C took it subject to that easement so long as the necessity for the easement continued to exist. The defendant, by acquiring title to C and uniting it with D in ownership and occupation, took it subject to the burden of the easement, and could not in that manner deprive parcel A of right of access over C. This easement is one of strict necessity, and is terminated whenever the necessity for it ends. I cannot see, therefore, but that the allegations of the complaint make out a case in which a right of way by necessity exists in favor of parcel A over C, and also over D, either by a street to be opened, or, if no street is to be opened under the covenant in the Sweet deed, then by simple right of passage over D.

The case of Tuttle v. Kilroa, 177 Mass. 146 , 58 N. E. 682 , is quite analogous in its facts to the case now under consideration, and the court held that a right to use a way in the nature of an easement was appurtenant to each and every part isolated or landlocked. Hence, upon the principle enunciated, A has the right to participate in the easement over D equally with parcel C. It is argued by counsel for the defendant that, if such a rule were to prevail, not only would the plaintiff be entitled to a right of way over C to A, but in case A, in turn, should be again subdivided, that each separate subdivision would be entitled to a separate right of way over C to D, and thence to the street. I do not understand that any such consequence would follow. On the contrary, I am of the opinion that the owners of A, no matter into how many parcels it might be subdivided, would be entitled to

These views as to a right of way by necessity set up in the second cause of action of the complaint bring us to the consideration of the right of action upon the covenant in the Sweet deed set up in the first alleged cause of action. It is argued by the defendant’s counsel that the covenant contained in the deed is simply the personal agreement of Charles A. Sweet, the grantor, and as such is not a covenant running with the land, and therefore confers no rights upon the grantees of Adams, who now own parcels A and C. The primary rule for the interpretation of a covenant, as well as of other contracts, is 'to gather the intention by reading, not simply the clause, but by also considering such surrounding considerations as the parties to the covenant are presumed to have considered. Clark v. Devoe, 124 N. Y. 120 , 26 N. E. 275 , 21 Am. St. Rep. 652 . The intention of the parties to the grant, if discernible, is to control in determining its meaning. Myers v. Bell Telephone Co., 83 App. Div. 625 , 82 N. Y. Supp. 83 ; Cohen v. Cong. Shearith Israel, 85 App. Div. 65 , 82 N. Y. Supp. 918 . Here we have Sweet granting a parcel of land having no access to any street, and agreeing with his grantee that he would provide the right of way to Seneca street for the property conveyed, by laying out and dedicating a street for public use. It was the manifest intent of both grantor and grantee by such a street to confer a benefit, not simply upon the purchaser, but a benefit upon the land conveyed, by carving out of the land unconveyed the proposed street. The land unconveyed was made the servient estate for the benefit of the parcel sold and deeded. We think it was the clear purpose and intent, when all the surrounding circumstances are considered, to create an easement, and something more than a mere easement for the benefit of Sweet’s grantee. The fact that Sweet in his covenant did not covenant for his heirs, grantees, and assigns is not controlling. Dexter v. Beard, 130 N. Y. 558 , 29 N. E. 983 . But in a proper case, where the intent is manifest, in the absence of such words, the covenant will nevertheless be deemed one running with the land. Dexter v. Beard, 130 N. Y. 558 , 29 N. E. 983 . In Post v. W. S. R. R. Co., 123 N. Y. 587 , 26 N. E. 7 , land was conveyed to a railroad company by deed containing a covenant on the part of the grantee to lay out and build a certain road over its tracks,

For the reasons stated, we are of the opinion that the demurrer to each cause of action should be overruled. Let an interlocutory judgment be entered accordingly, with permission to defendant to withdraw demurrer and answer upon payment of the usual costs of demurrer.