Grafton v. Moir — 30 N.Y. St. Rep. 314

Majority

p. 314

Joseph Grafton, App’lt, v. William Moir, Resp’t.

(Supreme Court, General Term, First Department,

Filed February 14, 1890.)

Headnote

Basements—Right oe wat.

A deed reserved a “right of way through and over” a carriage or alley way, eighteen feet wide, in the rear of the premises to a stable, as long as-the same was occupied as a private stable. Held, that such a grant covered only the right to a convenient and sufficient means of ingress and egress. There being no express reservation of light and air, none will be implied. Subject to the above limitation, the grantee may occupy a part, of the alley way by a building.

Appeal by the plaintiff from a judgment rendered at special term dismissing his complaint.

Treadwell Cleveland, for app’lt; Stephen H. Olin, for resp’t.

We think the conclusions arrived at by the special term were correct. The opinions delivered in this case by the-presiding justice upon the motion for an injunction pendente lite% and by Mr. Justice Ingraham upon the trial of the issues, fully cover all the points discussed before us; and we concur in their reasoning, as well as in the general conclusion that the rights reserved have not been invaded.

Much of the plaintiff’s argument is based upon the tenor of the grant (of the easement) to him and to his predecessors. The defendant, however, is bound only by the reservation in the deeds under which he has taken title. That reservation is limited to a right of way through and over the alley in question. So long, therefore,, as a convenient and sufficient right of way is afforded him, the-plaintiff cannot complain-. And that he has such right of way' has been found upon sufficient evidence.

There was no reservation of any use of the alley way save such as was needful for proper ingress and egress. What the plaintiff claims is the right to use every foot of the alley way, whether actually needful for a convenient right of way or not; also the-right to all the air and light obtainable from an entirely open and uncovered space. These rights, however, were not reserved, certainly not in express terms. Nor were they reserved by implication arising from the surrounding circumstances. As there was no express reservation of light and air, or of an open space overhead, it would require an extraordinary state of facts, of which,, indeed, it is difficult to conceive, to justify the inference that a.

p. 315

mere naked reservation of a right of passage limited the grantee’s use of his land to such purposes as would not be likely to affect the thorough ventilation of liis neighbor’s stable or the comfort of his neighbor’s horses.

The judgment should be affirmed, with costs.

Bartlett, J,, concurs.