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Wolfe v. Frost

4 Sarat. Ch. Sent. 72 Court N.Y. Ch. Decision date 1846-09-01 English

Contents

Majority

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Wolfe v. Frost.

Headnote

A party wall agreement, by which one about to build is authorized to place half his wall on his neighbor’s lot, and the latter is at liberty to use such wall for the support of buildings he may erect on his lot, on paying half its cost; does not restrict the latter from extending his buildings, on his own land, farther than such party wall, towards either the front or the rear.
An agreement between the owners of two adjoining city lots, that if the one will build a dwelling upon his lot, three feet back from the line of the street, the other will whenever he builds on his lot, set his buildings back the same distance from the street; is an interest in lands, and if not in writing, is void by the statute of frauds. Q
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May 18, 19, 20, 21;
Sept. 1, 1846.
The right claimed under such an agreement, is an easement, and is not a license merely.
An easement is a privilege, without profit, which the owner of one neighboring tenement has of another, in respect of their several tenements, by prescription or by grant; by which the servient owner is obliged to suffer or not to do something on his own land, for the advantage of the dominant owner.
An easement is an incorporeal hereditament, and passes with the dominant tenement by grant or succession ; and the servient tenement is transmitted subject to the easement, in like manner.
A license is an authority to do a particular act or series of acts upon another’s land, without possessing any estate therein. A license, when executed, will prevent the owner of the land from maintaining case or trespass for the acts done under it; but it is revocable at pleasure, and will not be a defence to any act done after it is revoked.
Although the party licensed may have expended money on his own land, solely on the faith of the license, that circumstance does not prevent the party granting it from revoking it at pleasure, without making any compensation for such expenditures.
A license is founded on personal confidence, and is not assignable or descendible. To enable the court to enforce specifically, a parol agreement for an interest in lands, on the ground of part performance; such performance must be founded upon and referable solely to the agreement. If the acts relied upon, would have been done whether there were any agreement or not, they will not relieve the case from the operation of the statute of frauds.
This cause was heard on pleadings and proofs. The bill, filed the 14th day of May, 1844, set forth that in the month of March,1839, Saxnpson V,_.S,. ^Wilder, then a resident of the city of New York, was the owner of the lot of ground No. 724 Broadswny, situated on the east side of Broadway, in the Fifteenth Ward of ihe city of New York, and bounded in front by Broadway, northerly by land of George Gordon, easterly in the rear by land of Seth Geer, and southerly by land of Cornelius W. Van Ranst; the lot being twenty-six feet and six inches in front and rear, and one hundred and thirty-seven feet and six inches in depth.
. That at that period, C. W. Van Ranst, since deceased, was the owner of a piece of ground upon Broadway, lying south of Wilder’s lot and immediately adjoining the same, and being about seventy-three feet in width in front and rear, and one hundred and thirty-seven feet and six inches in depth, on which there were no buildings save a wooden dwelling house, which
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had for nearly half a century, stood in about the centre of the tract, and which Van Ranst occupied as his family residence ; and that no other buildings had yet been erected upon Van Ranst’s tract; that George Gordon was at the same time the owner of a lot of ground of about the same dimensions as Wilder’s, situate upon Broadway, and immediately adjoining his on the north.
That at that period there had been erected upon Broadway, immediately adjoining Gordon’s lot on the north, a large and costly edifice, occupied as a Unitarian church ; which church, with a view to the improvement of the neighborhood, had been erected upon a line five feet back from the line of Broadway, leaving an enclosed space between the edifice and Broadway ; and there also stood erected upon Broadway immediately adjoining Yan Ranst’s land on the south, two large, elegant and expensively constructed marble houses, the front walls whereof had also been placed on a line five feet distant from the line of Broadway.
That at the period before mentioned, Wilder and Gordon contemplating the erection upon their lots of large and expensive dwelling houses, designed for their family residences, proposed to erect the front walls of their houses upon a line three feet distant from the line of Broadway, with a view to permit the erection in front of their houses of large and commodious stoops, and of balconies within enclosed areas. That thereupon Yan Ranst agreed with Wilder, that if Gordon and Wilder would cause their dwelling houses to be erected on a line three feet back from the line of Broadway, then any buildings which might thereafter be erected upon the plat of ground then owned by him, Yan Ranst, should also, in conformity with such plan, be set back three feet from the line of Broadway, and that Wilder should erect the south wall of his house twelve inches in width, one half on the land of Yan Ranst, and one half on his own land— the same to be used as a party wall, and to serve as the common wall of the house of Wilder, and of any building that might thereafter be erected by Yan Ranst, his heirs or assigns, upon his land adjoining the same. That inpursuance of this agreement, Gordon and Wilder did each cause dwelling houses to be erected
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upon their lots of ground, and did cause the front walls of the same to be set back upon a line three feet distant from the line of Broadway. That their houses, so erected upon their lots, are handsome edifices of excellent and expensive construction, Wilder having expended, in the construction of his house, the sum of about twenty-five thousand dollars; and that the construction of the same upon a line back from the line of Broadway, materially enhanced the value of the land of Van Ranst, and rendered the same more desirable for the erection of residences of the expensive character to which that section of Broadway had at that time become devoted. That Wilder would not have v caused the front of the house so erected by him, to be so set back from the line of Broadway, had not Van Ranst agreed, as before mentioned, that the front walls of any buildings which might thereafter be erected upon his piece of ground, should, in conformity with the plan adopted, be also placed at the same distance from the line of Broadway.
The bill then set forth at large an indenture under seal, dated March 16,1839, executed by Van Ranst and Wilder on the third day of April in the same year, and recorded in the registers office of the city, January 25th, 1842. This instrument recited that Wilder was about to erect a dwelling house on his lot, north of and adjoining Van Ranst’s land, and bounded on the north by land belonging to George Gordon ; and thereupon Van Ranst covenanted and agreed with Wilder, in consideration of one dollar, and for other valuable considerations, that he should and would permit and allow Wilder to erect a wall (commonly called a party wall,) on Van Ranst’s lot, south of and adjoining Wilder’s lot, such wall to be six inches in width on Van Ranst’s lot, and six inches in width on Wilder’s lot, and extending the whole length and height of the house so intended to be built by the latter; the wall serving as the common wall of the house about to be built by Wilder, and of any building that may or might thereafter be erected by Van Ranst, or his heirs or assigns, on the land of the latter.
Van Ranst further agreed that he, his heirs, executors, administrators and assigns, should pay to Wilder the sum of $475 in full for one-half the cost of the party wall, whenever Van
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Ranst, &c. should build upon the lot adjoining, and should have occasion to use such party wall, and not before.
Wilder, on his part, agreed that whenever the $475 should have been paid, Van Ranst, &c. should have free, quiet, and undisturbed possession of the party wall, the right to insert beams into any part thereof to the width of a brick, and no further, and the use of the same as a party wall as fully as Wilder had it. And it was further agreed, that if the party wall should be destroyed by fire or otherwise, either party should have the right to rebuild the same as a party wall.
The bill charged, that in and by this indenture, it was intended by Van Ranst and by Wilder to he agreed, that the party wall therein contracted to be erected by Wilder, should be used by Van Ranst or his heirs or assigns, whenever he or they should erect any building upon his lot adjoining Wilder’s, and that no wall should be permitted to be erected by V an Ranst, his heirs or assigns, upon his lot, which should project in front of the front line of the party wall contracted to be erected by Wilder ; and that such was the effect of such indenture.
The bill further stated that the party wall erected by Wilder, in pursuance of the indenture, extends back from a line distant three feet from the line of Broadway; and that the same does not extend nearer the line of Broadway than the distance of three feet therefrom.
That subsequently Wilder sold and conveyed the house and lot of ground before mentioned, to Charles W. Rockwell and Henry E. Davies; and that they, by deed dated the eighteenth - day of January, 1842, sold and conveyed the same to the com- . plainant, who paid them therefor the sum of twenty-five thousand five hundred dollars ; and that the latter now occupies the house as his family residence.
That Van Ranst has since deceased; and that William Frost „ claims to have purchased of his heirs or representatives, and has now in possession, that portion of the plat of ground of Van Ranst, which lies next adjoining the house of the complainant so built by Wilder; being a parcel twenty-three feet wide in front and rear, and extending the whole depth of Van' Ranst’s tract.
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That Frost has given out and declared that he is about to erect upon the lot of ground, so possessed and claimed by him, a shop and buildings suitable and designed for some manufacturing purpose, and to erect the front wall of such shop or buildings on the line of Broadway, and in front of the front line of the complainant’s house ; and has further given out and declared, that he is about to build a wall upon his lot in the line of the party wall so constructed by Wilder; and to extend such wall to be constructed by him from the present termination of the party wall, three feet, to the line of Broadway.
That Frost purchased such lot of ground and entered into the - possession thereof, with full knowledge of the agreement so made by and between Van Ranst and Wilder, and with full knowledge of the indenture before set forth which had then been recorded.
That since Frost has given out and declared those intentions, the complainant has personally applied to Frost; and has notified him of the claim and rights of the complainant, and has requested him to desist from erecting his front wall, upon a line in front of the front line of the complainant’s house, and from building any wall in extension of the party wall towards Broadway, in front of its present termination ; but that Frost persists - in his threat to construct such walls.
That the erection of the wall so threatened to be erected by Frost, would cause great injury to the value of the residence of the complainant, and would result in debarring him and his family from the reasonable enjoyment of their residence, and in a manner deprive them of the light and prospect now afforded „ them from the windows of their house, adjacent to the lot of Frost. The complainant insisted that Frost could not so erect those walls, without violating the rights of the complainant in the premises, and unlawfully disturbing him in the enjoyment of his property.
The bill prayed for a temporary and perpetual injunction against the construction of the threatened walls, nearer to the line of Broadway, than the line of the complainant’s house ; for costs and for general relief.
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The answer of Frost-admitted the allegations in the bill, except as is otherwise mentioned.
The defendant denied any knowledge or information, that either Wilder or Gordon, at the times in the bill set forth, owned the respective lots of land in the bill mentioned ;—or that the Unitarian Church had, with a view to the improvement of the neighborhood, been erected five feet within the line of Broadway. He denied that the two houses next south of Van Ransts were placed five feet back from the line of Broadway ; but on the contrary, the basement story of those two houses had its front wall flush with the line of Broadway, and rising about six feet above the pavement, supporting pillars which stand in front of the houses, even wilh line of Broadway, forming a portico in front of the first and upper stories of those houses.
The defendant is ignorant as to the intended size, cost, or situation, with reference to Broadway, of the buildings erected by Wilder and Gordon, or the purposes for which it was designed to apply them, or the plan on which they were to be built.
The defendant denied that Van Ranst agreed with Wilder, or any other person, in any manner, that if Gordon and Wilder would cause their dwelling houses to be erected on a line three feet or any other distance back from the line of Broadway, that any other buildings which might thereafter be erected on the plat of ground so owned by Van Ranst, should also in conformity with such plan, be set back three feet or any other distance from the line of Broadway, or any thing to that effect. And the defendant denied, that in pursuance of any such alleged agreement, as is set forth in the bill, Gordon and Wilder caused dwelling houses to be erected on their lots of ground, or caused the front walls of their houses to be set back upon a line three feet distant from the line of Broadway; and the defendant alleged, that if Gordon and Wilder did so build their dwelling houses, they built them so of their own accord, and without any such agreement. That their buildings were so set back in order to afford a court yard in front of their two houses, as an ornament to the houses ; and if the house intended to be erected by defendant were set back the same distance, it would be very much
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shut out of view by the court yard and heavy stoop of the complainant’s house.
The defendant denied that the construction of those houses upon a line back from Broadway, enhanced materially or otherwise, the value of Van Ranst’s land, or rendered the same more valuable; on the contrary, he averred that if the defendant were obliged to set his intended building back the same distance, it would be a very serious injury. That the two houses of Wilder and Gordon, are the only private dwellings set back from the street on the block in which they are, fronting on Broadway from Fourth street to Astor Place, and if the buildings on Van Ranst’s lots were set back three feet from the street, the building on the most southern of Van Ranst’s lots would have projecting by its side, the pillar and basement story of the house adjoining it on the south, in the same manner as would the defendant’s intended building be situated, with reference to the complainant’s house and lot which forms the subject of complaint in the present bill; and the defendant would be situated in the same manner, with reference to any person who should build on Van Ranst’s land immediately adjoining defendant’s lot.
That the only agreement ever entered into between Van Ranst and Wilder, relative to the land or any thing connected therewith, was the agreement set forth in the bill, and a supplemental agreement thereto, which is set forth at large in the answer, and which was attached to the former. This supplement recited that Wilder had, on the day of its execution, received of Van Ranst the sum of $475 in full for his share of the cost of the party wall agreed to be erected by Wilder; and thereupon, he, Wilder, in consideration thereof released Van Ranst from all further claim or demand in relation to the same, and agreed to give him, his heirs and assigns, full, quiet and undisturbed possession of the same when erected. The supplement then provided that inasmuch as Wilder, by purchase from Van Ranst, had extended his lot two feet on the line of Broadway, whereby the boundary line of their respective lots was altered ; it was understood that the former agreement in regard to the position of the party wall, should apply to the new boundary line of the lots of the respective parties, that is, that the party
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wall should extend six inches on one side and six inches on the other side of the new boundary line, and that the wall should be built in all other respects according to the former agreement.
The defendant averred that the first agreement was executed and delivered by Yan Ranst on the day of the date thereof, and before Wilder and Gordon had commenced building on their lots, and not on the third day of April, 1839, as alleged in the bill. He denied that it was ever intended, by the indenture or in any other way or manner by Yan Ranst, that no wall should be permitted to be erected by him or his heirs or assigns, upon his lot, which should project in front of the front line of the party wall.
The answer further stated that the defendant had purchased and was in the occupation of a portion of the premises belonging to Yan Ranst in his life time, next adjoining to the house built by Wilder and in the occupation of the complainant, and that he intends to build a shop on the rear of the lot to carry on the cabinet making business, and to have a dwelling house on the front of the lot, with a ware room in the first and basement stories, and a dwelling in the upper stories, and to erect the front of such house on the line of Broadway, as he respectfully submitted he has a right to do. He denied that he had given out or intends to build a wall on the line of the party wall, or to extend the party wall to Broadway.
He denied that up to the time he purchased the lot and enter- i ed into possession thereof, he had any knowledge or information, direct or constructive, of any such agreement as was alleged in the bill to have been made between Wilder and Yan Ranst.
The defendant insisted, that if any such agreement as alleged in the bill, were entered into between Wilder and Yan Ranst prior to the indenture, such agreement was and is invalid and of no effect whatever, as not entered into in writing; and that such agreement, if any ever existed, was completely merged and cancelled in and by the indenture and supplemental agreement thereto, and that such indenture and agreement formed and do form the only existing agreement between the parties : and that the defendant could in no manner be affected by any such agreement, verbal or written, in regard to his lot of land, the
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same if in writing not being recorded, and the defendant having no knowledge or information of any such agreement.
The complainant read in evidence, title deeds showing the title to his lot. The principal part of it, 25 feet in width in front and rear, was conveyed to Wilder, May, 26th 1837, and two feet in width in front and rear, was conveyed to Wilder by Van Ranst, on the third day of April, 1839; on which, Wilder conveyed 6 inches in width from the north side of his lot, to Gordon. The agreement and supplement were then read, as set forth in the pleadings, the latter bearing date April, 3, 1839.
The complainant proved the building of his house by Wilder, the front line of the ashlar, being three feet from the line of Broadway, and the brick line three feet two inches from the line of Broadway. That the defendant had proceeded, since the commencement of the suit and erected a three story basement brick building, on the lot he bought of Van Ranst’s heirs, the front wall of which projects three feet and three inches beyond - the brick front line of the complainant’s house. That the defendant was notified before the first of May, 1844, by the complainant, of Van Ranst’s agreement with Wilder. The complainant examined Wilder as a witness, who proved that it was agreed verbally between himself, Gordon and Van Ranst, to set back all their buildings three feet from the line of Broadway. He testified to several conversations of Van Ranst to that effect, but that there was no agreement in writing on the subject, except the one as to the party wall. On his cross-examination, he testified that he should have set the front wall of his house back three feet, with Gordon, whether Van Ranst had consented to do it or had refused.
Other witnesses for the complainant, proved conversations with Van Ranst, while Wilder was building his house, to the effect that he and his heirs would build back three feet from the line of the street. One witness said Van Ranst made it a condition of the sale of the two feet in width to Wilder, that the latter should build his front wall on the line Van Ranst desired. The same witness estimated the injury to the complainant’s house, by the defendant’s building three feet and upwards in advance of his front, at three thousand dollars.
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On the part of the defendant, it was proved that he contracted under seal for the purchase of his lot from Van Ranst’s executors, on the 15th of April, 1844. A deed of that date to him, and a cotemporary bond and mortgage for the whole purchase money, $10,000, were duly executed ,■ but they were all deposited in escrow, to remain until the defendant’s proposed buildings were erected, and they had not been delivered on the 31st of October, 1844.
The defendant produced an affidavit made by Wilder in behalf of the complainant, May 3, 1844, in which he derived the entire agreement between him and Van Ranst, from the indenture as to the party wall and its objects. Also Wilder’s assignment to Davis and Rockwell, and the agreement of the latter to convey to the complainant; neither containing any allusion to the right claimed by the bill. A witness present when the party wall agreement was executed, testified that nothing was said about setting back the buildings of either party. Another testified, that the complainant, in stating his claim to the defendant on the 4th of May 1844, reposed it wholly upon the party wall agreement and did not claim that there was any other. It was proved that before Wilder built, Van Ranst’s front fence stood upon the line of Broadway, and that it had never been altered or removed.
H. F. Clark and J. P. Hall, for the complainant.
I. ' The right claimed by the complainant, to restrain the defendant from erecting his building on the line of the street or within three feet of it, is an easement, or in the nature of an easement, created by the agreement between Wilder and Van Ranst, and their subsequent acts, for the benefit of Wilder and those claiming under him.
II. The right claimed may be created by grant, since all easements and servitudes may be created in that way. (3 Kent’s Com. 448.)
III. It may be created by agreement or covenant. (Moore v. Rawson, 3 Barn. & Cress. 332, per Littledale, J.; Parker v. Foote, 19 Wend. 316 ; Hills v. Miller, 3 Paige, 254; Trustees
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of Watertown v. Cowen, 4 ibid. 510; Truehart v. Price, 2 Munf. 468 ; Rankin v. Huskisson, 4 Simons, 13.)
IV The agreement by which the easement or servitude, (as it is called in the civil law,) is created, need not be under seal. For according to the doctrine of courts of equity, contracts for any interest in land, and even for the sale of the estate in fee simple, may be made without seal. (See 2 Rev. Stat. 69, § 6, 8, 10, 2d ed.; 3 and 4 Paige, before cited.)
V. The right claimed by the complainant, may also be created by a verbal agreement, followed up by performance of the agreement and the expenditure of money. (Liggins v. Inge, 7 Bing. 682 ; Winter v. Brockwell, 8 East, 308 ; Taylor v. Waters, 7 Taunt. 374; Webb v. Paternoster, Palmer’s R. 71, S. C. 2 Roll’s R. 152, Popham, 151; Ward v. Lake, Sayer’s R. 3 ; Kerne v. Rurick, 14 Serg. & Rawle, 267 ; 4 ibid. 241; 5 Watts, 308 ; 3 Kent’s Com. 451. 452.)
VI. The right claimed by the complainant, may also be created by prescription. (3 Kent’s Com. 447, and cases cited.)
VII. However the right may be created; whether by deed, covenant, parol agreement or otherwise, the same is irrevocable. (See the cases cited under the 5th point.)
VIII. The rights which were acquired and possessed by Wilder, at the time when Van Ranst held the lot since purchased by the defendant, have descended to, and are vested in the complainant, as against the defendant in this suit. Such servitudes and easements however they may be created, run with the land, and bind all subsequent holders. (3 Paige, 254, and 4 ibid. 510, above cited ; Barrow v. Richard, 7 ibid. 351; Matter of Seventeenth Street, 7 Wend. 267 ; Matter of Lewis Street, 2 Wend. 473 ; Bleecker v. Bingham, 3 Paige, 246; City of Cincinnati v. White's Lessees, 6 Peters, 432.)
IX. The defendant is chargeable with full notice of the complainant’s right. He is not a bona fide purchaser and has had actual notice. (Hawley v. Cramer, 4 Cowen, 717; Pitney v. Leonard, 1 Paige, 461 ; 2 J. J. Marshall, 178.)
X. The statute of frauds which is pleaded by the defendant, cannot be interposed to bar the complainant’s rights. If the statute applied, the performance on Wilder’s part, takes the case
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out of its provisions. (3 Kent’s Com. 452 ; 2 Story’s Eq. Jur. § 759, 764; 1 Vernon, 363 ; 2 ibid. 455; 1 Atkyns, 12; 1 Vesey Jr. 333; 13 ibid. 456; Parkhurst v. Van Cortlandt, 14 Johns. 15 ; Knickerbacker v. Harris, 5 Wend. 68 ; 4 Harris & McH. 252; 2 McCord’s Ch. Rep. 277; 1 Randolph, 165; 1 Blackford’s Rep. 58; 5 Day’s Rep. 67; Rice’s Eq. R. 198; Town v. Needham, 3 Paige, 545.)
XL The proper remedy in this case, is in a court of equity by injunction, because: '
1st. The courts of equity often use the process of injunction, as a means of compelling a specific performance, where the performance sought to be enforced upon the party does not consist in doing any specific acts, but simply in refraining from doing acts in violation of the contract.
2d. An injunction is the appropriate remedy to protect the rights of the complainant in this case. (2 Story’s Eq. § 926, a.; Hills v. Miller, 3 Paige, 254; Corning v. Lowerre, 6 J. C. R. 439 ; 4 Paige, 510.)
XII. The complainant is entitled to an injunction to restrain the encroachment. He is also entitled to a decree directing the removal of the building already erected, and to his costs.
Mr. Hall, in reply, also referred to 3 Day’s R. 476, 484 ; 4 Conn. 568 , 573; 1 .Binn. 216; 4 Wheat. 513 ; 4 Sim. 13; 1 Cowen, 622, 641; 7 Conn. 224 , 342; 17 Wend. 136 , 147.)
J N. Platt and J. W Gerard, for the defendant.
I. If the contest were between Wilder and Van- Ranst, the contract or agreement, or whatever it may be called, set up in the bill, is clearly against the statute of frauds. It could only be supported, if at all, by showing that Wilder, in consideration of, or as part of Van Ranst’s alleged' agreement, and as a consequence of the agreement, set his house back and would be fraudulently injured if Van Ranst’s alleged agreement is not carried into effect. But instead of proof that Wilder’s setting back his house, was part of Van Ranst’s agreement to do the same,Wilder’s testimony is that he would, with or without the assent of Van Ranst, have put his house back as he did. And instead
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of Yan Ranst’s agreement being the consideration of Wilder’s setting his house back, Mr. Silliman says that Van Ranst made it a condition of selling Wilder the two feet, that he, Wilder, should set his house back.
But there is no such performance as in equity would have dispensed with the statute of frauds, between Wilder and Yan Ranst. (Noyes v. Chapin, 6 Wend. 464 ; Howard v. Easton, 7 J. R. 205 ; Jackson, ex derm. Willis v. Dysting, 2 Caines R. 198; Stuyvesant v. Tompkins, 9 J. R. 61; Rice v. Peet, 15 J. R. 503.)
In case of part performance, but no writing, equity requires the clearest proof of agreement. (Frear v. Hardenbergh, 5 J. R. 272 ; Thompson v. Gregory, 4 J. R. 81; Phillips v. Thompson, 1 J. C. 131; Jackson v. Buel, 9 J. R. 298 ; Tryon v. Mooney, 9 J. R. 358 ; Van Alstyne v. Wimple, 5 Cowen, 162; Mumford v. Whitney, 15 Wendell, 380 ; Hewlins v. Shippam, 5 B. & C. 221; Miller v. A. & S. R. R. Co., 6 Hill, 61 ; 2 Story’s Eq. § 764; 1 ibid., § 192; 4 Pai. 305 ; Seymour v. Delancey, 3 Cow. 445 .)
II. If the contest were between Wilder and Yan Ranst, there is no such agreement as that alleged in the bill proved; on the contrary, it is fully disproved.
1. If proved, the complainant, as to it, is a mere volunteer ; he had no notice or idea of it when he bought; it formed no part of the consideration of his purchase, and it is not conveyed to him. He and Wilder, up to the commencement of the suit, put the defendant’s obligation to put his house back from the street, on the party wall agreement. The cases which require open spaces in front of buildings to be kept open, all contain the positive proof of the positive fact, that part of the consideration of the purchase, was at the time positively expressed to be, that such space should remain open, and that such agreement too, came directly or mediately from the vendor of the houses, &c., not a third person.
2. It is not a covenant or agreement to do any thing in or' about the complainant’s land ; it does not come to the complainant with the lands. (German v. Machin, 6 Paige, 288; Phillips v. Thompson, 1 J. C. R. 131; Parkhurst v. Van Cortlandt,
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1 J. C. R. 273; Gunter v. Halsey, Ambler, 586; Wells v. Shadling, 3 Ves. Jr. 379.)
III. If there were such an agreement proved as between Wilder and Van Ranst; and if when proved, it amounted to any thing as between them, it would not affect the defendant; because—
1. He had no notice.
2. If he had notice, the statute of frauds is his protection.
3. Because the agreement would be a mere personal covenant, binding on Van Ranst and his legal representatives, but not a cow nant running with the land, and a charge upon it. (Keppell v. Bailey, 2 M.&K. 546.)
IV. 1. The agreement cannot be supported as an easement; for an easement is an authority for one man to do something on another’s land. (3 Kent’s Com. 434; Mumford v. Whitney, 15 Wend. 380 ; Miller v. Auburn & Syracuse R. R. Co., 6 Hill, 61 ; Hewlins v. Shippam, 5 B. & C. 221.)
2. It cannot be supported as a license, because a license is revocable at pleasure, and cannot be assigned.
3. It cannot be supported as a dedication ; because a dedication can only be to the public, or for public use, or for a pious or charitable use. (Hunter v. Trustees of Sandy Hill, 6 Hill, 410 ; Pearsall v. Post, 20 Wendell, 111; S. C. 22 Wendell, 425.)
4. It cannot be supported as a conveyance; for the statute of frauds is not complied with.
5. It cannot be supported as a covenant or agreement; for it is relative to lands, and as such within the statute of frauds.
V. The whole case shows the benefit of the statute of frauds. The constant proneness of all the witnesses, from Mr. Silliman to the bricklayer, to forget remarks and words of Van Ranst, and swear that “ he agreed,” that “they agreed,” or that “ they understood that he agreedwhere all he could have done, must have been to express his ideas or feelings, without the most distant idea of an agreement of any kind. The two written agreements relative to the party wall and sale of the two feet, were executed after this pretended verbal agreement; and neither of them speak of any such agreement. From which there is rea
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sonable presumption in fact, and a conclusive one in law, that there never was such an agreement, whatever may have been the conversations; or if there were such an agreement, it was abandoned. (Cow. and Hill’s Notes to Phill. Ev. 1466, note 984.)
YI. The whole difficulty arises from this : Wilder either innocently mistook the effect of the party wall agreement, and supposed that it bound Van Ranst to put his houses back; or he thought that by getting Van Ranst to execute it, Van Ranst, without perceiving its effect, would be so compelled.
VII. The subject matter of the agreement, if it had been placed in the shape of a covenant by Van Ranst, being for a thing not in esse, but contingent, to put a house back; is not one running with the land, so as to bind the grantee of lands, but is only a personal covenant, binding Van Ranst and his personal representatives. (Spencer’s case, 5 Co. R. 17 ; Smith’s Leading Cases, 75, 82, 87, 88, 90 to 94, 99, 107; and see Duke of Bedford v. Trustees of the British Museum, 2 M. & K. 552.)

The bill charges that by the indenture of March 16th, 1839, executed between Wilder and Van Ranst, it was intended to be agreed that the party wall for which it provided should be used by-Van Ranst whenever he should build on his lot adjoining Wilder’s; and that no wall should be erected by him or his heirs or assigns, which should project in front of the front end of that party wall. It is impossible for me to derive any such legal intent from the indenture, as is claimed by the complainant. Indeed, the bill itself, as well as the counsel at the hearing, reposed the complainant’s equity, upon a distinct express agreement between Wilder and Van Ranst, that the buildings to be erected on their respective lots should be set three feet back from the line of Broadway; which agreement, when it was introduced in evidence, turned out to have been made by parol.

Several interesting points, growing out of this parol contract, were presented and ably investigated by the counsel on both sides ; but in the view which I have been constrained to take of the case, it will not be incumbent on me to examine more than two of them at much length.

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The evidence in support of the making of the agreement, I will not criticise or recapitulate; but will assume, for the purposes of the argument, that it is proved as it is stated in the bill.

In regard to the point that the defendant had no notice .of the agreement before he purchased, I consider that it is of no consequence, (otherwise than in disposing of the costs of the suit in a decree against him,) whether he had notice or not. He had not paid any part of the purchase money when the bill was filed, nor had any conveyance been delivered to him. He was wanting in both of the essential attributes of a bona fide purchaser, reposing himself in equity upon the absence of notice.

The defendant, although he bought with constructive notice, and persisted, after actual notice of the complainant’s reasonable expectations and supposed rights, in thrusting himself into this controversy, (I must say, so far as the testimony discloses, very needlessly, if not wantonly and ungenerously,) to the prejudice and discomfort of the complainant, is entitled in this tribunal to his rights as regulated by law; and it is not my province to judge him by his moral or social derelictions.

In ascertaining those rights, I propose to examine two questions ; first, is the contract relied upon, within the statute of frauds 1 and second, if it fall within the statute, is this a case in which equity may nevertheless carry it into execution ?

First. Does this agreement come within the provisions of the statute 1

The sixth section of the statute “ of fraudulent conveyances and contracts relative to lands,” enacts that no estate or interest in lands, except leases for a year or less, nor any trust or power, over or concerning lands, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing. And by the eighth section, every contract for the sale of any lands or any interest in lands, shall .be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (2 Rev. St. 134, 135, § 6, 8.)

It is claimed on the part of the complainant, that the urban servitude which he seeks to establish against the defendant’s lot,

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is not an estate or interest in land, nor a trust or power over or concerning land. That he claims no right in the defendant’s land; his claim being not so much an easement, as a right in the nature of an easement, founded on Yan Ranst’s contract that he would use his land in a particular manner. And he defines his claim, as a privilege growing out of the restricted use of Yan Ranst’s land thus contracted for. It is difficult to perceive how this right, if it be neither an estate or interest in or over Yan Ranst’s land, can be said to have run with,-the land, into the hands of his heirs and their grantees; which is a proposition also urged by the complainant. But I need not speculate on the apparent inconsistency of the two positions.

It is impossible for the complainant to describe his claim, without plainly showing that it is an interest in the land owned by the defendant.

The definition of an easement, as given so long ago as the Termes de la Ley, includes this right as it was defined by one of the learned counsel. It is a privilege that one neighbor hath of another by charter or prescription without profit 5 and as described in a modern treatise, it is “ a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for ^ the advantage of the dominant owner.” (Gale and Whatley’s Law of Easements, 5.) The essential qualities of easements are,'these : 1st, they are incorporeal; and 2d, one imposed upon corporeal property; 3d, they confer no right to a participation in the profits arising from such property; 4th, they are imposed for the benefit of corporeal property; and 5th, there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. (Ibid. 5.)

The right or privilege set up in the bill, contains each of these essential qualities. It is, as there stated, an incorporeal hereditament, accessory to the complainant’s tenement, and attached to 1 the soil of Yan Ranst’s as the servient tenement; subjecting the latter for the benefit of the former ; and as such hereditament, it , would pass with the servient heritage to each successive propri- j etor, precisely as the complainant insisted in his points. (Pe n

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ruddock's case, 5 Rep. 101.) In Parker v. Foote, ( 19 Wend. 309 , 317,318,) where the claim set up, was a right to continue the enjoyment of light and air through windows overlooking the adjoining land ; Judge Bronson, in delivering the opinion of the court, speaks of the claim as one by which the party acquired a beneficial interest in the land of his neighbor, and by which the latter forfeited such interest.

I need not dwell on the proposition .that incorporeal hereditaments, are inheritable^and of course assignable, rights ; issuing out of, or concerning, lan'ds. Ajjd it may with as much propriety be said that a rent charge is not an interest in lands, within the meaning of the statute of frauds, as to assert that an easement is not such an interest.

There has been a strong tendency in some of the modern decisions, to relieve hard cases arising under this branch of the law, from the force of the statute o’f frauds. Several of those cited by the complainant, exhibit this tendency, and especially Winter v. Brockwell, 8 East, 308, and Taylor v. Waters, 7 Taunt. 384; and such was Woodbury v. Parshley, 7 New Hampsh. R. 237. If these decisions are law, a parol license, executed or acted upon, is sufficient to pass an incorporeal hereditament ; thus not merely repealing the statute of frauds, but abolishing the rule of the common law that such an estate can only be conveyed by a deed.

The case oi Winter v. Brockwell, is commented upon in many of those which followed it, and Taylor v. Waters has been overruled in England, and disregarded here. See Gale & What, on Easements, 19 to 45, for a statement and review of the late decisions in England.

The struggle in the hard cases referred to, has been to christen these privileges in another’s land, as licenses, rather than easements ; but the attempt has not succeeded.

I will refer to a few of the authorities on the question.

In Hewlins v. Shippam, 5 Barn. & Cress. 221, which was a well considered case, the defendant, for a valuable consideration, assented to the plaintiff’s making a drain in the defendant’s land. The plaintiff made the drain at considerable expense, and some years afterwards the defendant stopped it up. The court held

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that the right claimed by the plaintiff to keep up this drain, was an incorporeal right, such as rents, rights of common, &e., and a freehold interest in it could not be created or passed otherwise than by deed. That although a parol license might be an excuse for a trespass, until such license was countermanded; a right and title to have such a passage for the water, a freehold interest, required a deed to create it; and there being no deed shown, the plaintiff could not support his action.

In Cocker v. Cooper, (l Cromp. M. & Rose. 418,) this case was fully recognized and approved. There, the plaintiff in 1815, had, with the defendant’s verbal consent, constructed a drain and tunnel in the latter’s land, and the water flowed in it till 1833, when the defendant stopped up the drain. The court held, that the plaintiff could not recover ; and said, “ With regard to the question of license, Hewlins v. Shipp am is decisive to show, that an easement like this cannot be conferred, unless by deed." (And see Bryan v. Whistler, 8 Barn. & Cress. 298; and Fentiman v. Smith, 4 East, 107.)

Gale & Whatley, in their treatise before cited, pages 42, 43, say, “ The result of the decided cases appears "to. be this ; a man may, in some cases, by parol license, relinquish a right which he has acquired” (by parol) “ in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition ; but he cannot, by such means, impose any burthen upon land in derogation of such ordinary rights of property.”

In Mumford v. Whitney, ( 15 Wend. 380 ,) it was decided, that a parol agreement to permit a party to abut and erect a dam on lands of another, not for a temporary, but for a permanent purpose, is void, within the statute of frauds. The effort in support of the dam, was to make out that the agreement was a license, which having been executed, was not revocable. But the court held, that it was more than a license; it was the transfer of an interest in lands.

A license, is an authority to do a particular act or series of acts, upon another’s land, without possessing any estate therein. A claim for an easement, must be founded on prescription or a grant by deed, for it is a permanent interest in another’s land.

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A license when executed, will prevent the owner of the land from maintaining an action of case or trespass, for- the acts done under it; but it is revocable at pleasure, and will not be a defence to any act done after it is revoked. Thus, it is applicable only to the temporary occupation of land, or dominion over it, and confers no right or interest in the land.

On the other hand, an agreement that one may enter and use land for a year, is more than a license ; it is an estate in the land. So of an agreement that one will not build on his own land, so as to obstruct his neighbor’s light and prospect from the windows in the adjoining house of the latter.

These distinctions are derived from the case just cited, from 3 Kent’s Comm. 452, and from Cook v. Stearns, a strong authority in 11 Mass. R. 533 .

Chief Justice Savage' says, in 15 Wend. 393 , “ To decide that a right to a permanent occupation of the plaintiff’s land, may be acquired by parol, and by calling the agreement a license, would be in effect, to repeal the statute.” The remark is equally applicable to an agreement set up by the owner of one tenement, against the owner of the one adjoining, that the latter shall permanently refrain from building upon his land, or using it in a particular manner, for the benefit of the tenement of the former.

The judgment of the court in Miller v. The Auburn and Syracuse R. R. Co., ( 6 Hill, 61 ,) sustains this' doctrine fully. And see the note to the second American edition of Smith’s Leading Cases, 27 Law Library, Phila., New Series, page 92.

My conclusion is, that the agreement proved, is invalid by the statute of frauds, and that the right claimed by the complainant, is not established and cannot be sustained as an existing legal right. Whether it be such a contract as equity will enforce notwithstanding the statute of frauds, remains to be considered.

Before proceeding with that inquiry, I will advert to another point, as illustrating the one just decided, viz: that the rights acquired by Wilder against Van Ranst, under the agreement, descended to and vested in the complainant as against the defendant, a purchaser from Van Ranst’s heirs or devisees. Now the eases on which the complainant relied, leave no middle

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ground between a license, and an easement or hereditament. His right must fall within one class or the other. If within the latter, it is void by the statute. If within the class of licenses, what is the language of all the authorities, which have attempted to support similar interests, or which define a license? Uniformly, that a license is founded in personal confidence, and that it is not assignable or descendible. It was so held in Jackson, ex dem. Hull v. Babcock, (4 Johns. R. 418.) The same was adjudged in Bridges v. Purcell, (1 Dev. & Batt., N. C. Law Rep., 492,) where, in a suit for overflowing land by a mill dam, the defendant proved a parol consent by the plaintiff's ancestor, to the erection of the dam. The court said, that if the right were appurtenant to the land, or fastened to it, so as to descend with it, such right was an interest in the land, and within the statute of frauds. The same doctrine is laid down in Shep. Touch. 231, 3 Kent’s Comm. 452, 15 Wend. 392 , and in many others. See also, 1 Smith’s Leading Cases, before cited, page 93, note.[1]

If, therefore, the agreement were sustained as a license, thereby evading the statute, it would appear to have terminated with the assignment of Wilder on the one hand, and the death of Yan Ranst on the other.

Second. The remaining inquiry which I proposed, is the power of this court to give effect to the agreement as stated in the bill; it being void' by the statute of frauds.

Chancellor Kent says, “'the law is solicitous to prevent all kind of imposition and injury, from confidence reposed in the acts of others; and a parol license to do an act, on one’s own land, affecting injuriously the air and light of a neighbor’s house, is held not to be revocable by such neighbor, after it has been once acted upon.” For which position, he cites Winter v. Brockwell, heretofore mentioned, another case before the statute, and two Pensylvania decisions, following Winter v. Brockwell. The learned commentator then adds, “ such a license is a direct en

(a) (a) And Perry v.Fitzhowe, 10 Lond. Jur. R. 799; and 15 Law Journal, Q. B. 239. Now reported in 8 Q. B. R. 757.

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couragement to expend money, and it would be against conscience to revoke it, as soon as the expenditure begins to be beneficial. The contract would be specifically performed in equity. Such a parol .license to enjoy a beneficial privilege, is. not an interest in land within the statute of frauds.” He also says, “ in Liggins v. Inge, 7 Bing. 682, the court distinguished between licenses which, when countermanded, leave the party in statu quo, and licenses for the construction of buildings and works, and they are not revocable.”

f The expenditure of money, where it is for the benefit of the party setting up the agreement, and of no advantage to the other party, and the agreement being in point of law of no validity; can scarcely of itself be the basis of a jurisdiction in equity, to make that valid which a statute declares shall be void.

Where a license is given to erect a house on another’s landj equity will not, after the house is built, compel the owner of the land either to pay for it, or to suffer it to remain. The other party at most, may remove his building. In this instance, it was of no particular advantage to Van Ranst, to have Wilder’s house set back from the street, unless Van Ranst should build a similar house, and even then, mens tastes would differ as to the advantage suggested. If he wanted to build a shop or store, or a hotel on his ground, most persons would deem it an injury to have its front set back from the line of the street.

Again, many might believe, as Wilder did, that it was best for him to set his house back three feet, whether Van Ranst did, or did not agree to do the same. It seems impossible to apply the principle of fraud to these facts, when founded on the expenditure of Wilder’s money in building on the line proposed by him.

Some allusion was made at the hearing, to an agreement to build three feet from the line of the street, constituting a part of the contract by which Van Ranst sold to Wilder two feet in width from the north side of his land. This is not set up in the bill; and besides other answers to it, Mr. Silliman’s testimony makes it a condition imposed on Wilder by Van Ranst, without any corresponding agreement on the part of the latter, in respect of his own land.

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The complainant’s principal reliance, in this part of his case,, was on the performance of the agreement by Wilder on his part. He built a very expensive house on the stipulated line, which, it is said, enhanced the value of Yan Ranst’s lots, and which j will be greatly injured by the latter being built upon up to the / line of the street. That Wilder expended his money on the faith' of the agreement, and neither he or his grantee can now be put | in the same situation they were and would have been, had the / agreement never been made.

Yan Ranst’s payment for the party wall, is mentioned asa - part performance on his part. But the payment was made before the wall was begun ; and as I have already stated, the party-wall agreement was entirely distinct from the one upon which this suit is brought.

In order to make the acts such as a court of equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to have been done solely with a view to the agreement being performed. If they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement. So it is not only indispensable that the acts done should be re- I ferable exclusively to the contract; but the parol contract ¡ should also be established by competent proofs, to be clear, def- i inite and unequivocal, in all its terms. And moreover, nothing'/ is to be considered as a part performance, which does not put the ) party into a situation which is a fraud upon him, unless the; agreement is fully performed. (2 Story’s Eq. Jur. § 761, 762, 764 ; Cole v. White, cited in 1 Bro. Ch. Ca. 409, 413, 416 ; Lord v. Underdunck, 1 Sand. Ch. R. 46.)

Conceding that this parol agreement was transmitted to the complainant as an equity appurtenant to the property, what is its effect ? As stated in the bill, it would bind Yan Ranst’s land to the end of time, while Gordon and Wilder’s contract would expire whenever their buildings should be destroyed. The latter limit was the construction which one of the complainant’s counsel placed upon the agreement; and in reference to its duration against Yan Ranst, he said it was not to be perpetual,

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but was to continue so long as the occasion for it continued. Now, how long is that to be, and. who is to decide that the occasion for it has ceased ? Will it cease when either Mr. Gordon or Mr. Wilder’s grantee, chooses to pull down his house, or to convert it into a- boarding house or a hotel 1 On is it determinable by a casualty, a destruction by fire, instead of a voluntary destruction of their buildings 1 Must both be destroyed, or does the occasion cease when one is burnt or torn down ? These inquiries, and others like them, force themselves upon the mind, when it attempts to carry out the agreement stated in the bill, and to reduce it to those definite and specific terms which the parties would have employed, had it been drawn up in writing at the time of their negotiation.

Another and a vital point for the support of the bill, is that the acts relied upon were done solely with a view to the agreement, and were referable to it exclusively. This was well understood in framing the bill, for it is alleged positively that Wilder would not have caused the front of his house to have been set back from the line of Broadway, but for Yan Ranst’s agreement.

The principal witness on the point is Mr. Wilder. His testimony leaves it doubtful whether there was any agreement, other than those contained in the party-wall indentures; and such negotiations or agreement as he proves, deviate from the bill in this, that the front wall of any future edifices on his lot and Gordon’s, were to be set back, as well as those of the houses then about to be built.

He says that he caused his front wall to be placed three feet back from the line of Broadway, in conformity with the agreement or arrangement with Yan Ranst.

But so far from proving that he would not have set it back just as far, if Yan Ranst had wholly refused to agree to set his buildings on the same line ; or that he was placed in any different situation in consequence of that agreement, from what he would have been if it had never been made ; he states explicitly and voluntarily, that with Mr. Gordon’s assent, he should, with or without the assent of Yan Ranst, have erected his house back .from the street, as he did.

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It no where appears, nor is it alleged, that Mr. Gordon’s action in the matter, was in the least influenced by Van Ranst’s course. The church was next to his lot on the north, and was set back farther from the street than Wilder proposed ; so that it is probable that Gordon would have built on the proposed line on Wilder’s joining him, without any regard to Van Ranst. Be this as it may, it was for the complainant to prove clearly and unequivocally, that Wilder’s building on the line three feet from the street, was solely in consequence of Van Ranst’s agreement and the proof fails entirely to establish that fact.

On both grounds, the indefinite terms of the agreement, and the failure to prove that the acts of part performance which are relied upon, were referable solely to the agreement; I must hold that this court is not authorized to relieve the complainant.

The bill must be dismissed with costs.

Cases cited