Rivera v. Edward — 17 N.Y. St. Rep. 893

Majority

p. 893

Joseph Rivera, Pl’ff, v. Edward Finn el al,, Def’ts.

(Supreme Court. Special Term, New York County,

Filed August 23,1888)

Headnote

Deed—Covenant—Construction of—Right of passage—What it INCLUDES.

A certain deed contained a covenant giving to the grantee “ the right- of passing and re-passing through the alley without being a hindrance or annoyance to such other persons as the parties of the first part have privileged or may hereafter privilege.” Held, that the grantee and his assigns had no title to the fee and were given no right to use either the land below the surface nor the air above; that it was a mere right of passage, and as long as that right of passage was not interfered with they had no right to complain; that no excavations of the soil or use of the land underneath the surface of the ground, so long as the right of passage was not interfered with was an impairment of the right of passage.

Edward S. Bapallo, for pl’ff; Edward B. Schell, for def’ts.

In 1817 one Stewart conveyed the lot -owned by the plaintiff to Bartholp, and that deed contained a covenant giving to the grantee “the right of passing and re-passing through the alley without being a hinderance or -annoyance to such other persons as the parties of the first part have privileged or may hereafter privilege.”

By that right the grantee and his assigns were given the right of passing and re-passing through the alley. They had no title to the fee and were given no right to use either the land below the surface nor the air above. It was a mere right of passage, and as long as that right of passage is not interfered with plaintiff has no cause of complaint By that ■deed the title to the fee remained in the owner of the alley, who was entitled to use it in any way not inconsistent with the grantee’s right of passage, and no excavations of the soil or use of the land underneath the surface of the ground,

p. 894

so long as the right of passage was not interfered with, was; an impairment of the plaintiff’s right.

There was no evidence upon the trial to show that the defendants intended or had threatened to interfere with this-right of passage or to interfere with the use of the alley as a means of access to the plaintiff’s premises. The excavation of the earth underneath the alley was not such an interference as would justify the interposition of a court of equity.

I think, therefore, the plaintiff has failed to make out a cause of action, and the complaint should be dismissed with, costs.