Shipman v. Beers.

Swift v. Collins, 1 Den. 659; Dyer v. Dunivan, 3 How. Pr. 135; People v. Oneida Com. Pleas, 18 Wend. 652; Grantman v. Theall, 19 Abb. Pr. 308; Linner v. Crouse, 61 Barb. 289).

II. That where the guardian ad litem was insolvent, the security required by section 316 of the Code, which was intended as a substitute for 3 Rev. Stat. 910911, was wholly lost, and the court, in the exercise of its discretion, should exert its inherent authority and cause such security to be given, thereby placing the defendant in the same position as he would have been had the guardian ad litem been responsible (Linner v. Crouse, supra).

T. F. Loughlin, opposed.

Barnard, J.,-Held, that the guardian ad litem should not have been appointed unless the papers upon which application was made showed her pecuniary responsibility; and ordered her to file security for costs. in the sum of $500, with two sufficient sureties, to be approved by a justice of the court or the county judge, on or before the 3rd day of September, 1877, and that until such security was so approved and filed all proceedings on the part of the plaintiff should be stayed.

SHIPMAN v. BEERS.

N. Y. Supreme Court, First Department; Chambers, June, 1877.

ANCIENT LIGHTS. INJUNCTION.

As between adjoining owners, who are strangers to each other, one does not, by building on the line of his own ground, acquire a right to light from his neighbor's ground.

Also, where both proprietors obtain their title from a common source,

Shipman v. Beers.

the same grantor having conveyed the tenement with windows, to one, and the ground overlooked, to another, and there was no clear intent to limit the use of the vacant lot for the benefit of the windows, no right to air and light from the vacant lot will be acquired such that the owner of the vacant lot can be enjoined from building thereon and obstructing the windows.

Motion by plaintiff to continue an injunction.

This action was brought by William D. Shipman, as assignee of William Butler Duncan, against Nathan P. Beers, to prevent the obstruction of certain windows in No. 1 Fifth avenue in the city of New York.

The complaint set forth that the trustees of the Sailors' Snug Harbor in the city of New York, being owners in fee of the lots which are now known as Nos. 1 and 3 Fifth avenue, on or about March 28, 1835, leased the same by two several indentures to Samuel Downer, Jr., and James Boorman, for the term of eighteen years from November 1, 1834, with covenants of renewals; that on July 27, 1838, the said lessees assigned the said leases to Esther Smith; that on June 16, 1848, the latter reassigned the same to James Boorman; that on November 1, 1852, these leases were renewed for the term of twenty years; that while the said leaseholds were owned by one and the same person, he built upon and improved them in such a manner that it became necessary for the full use and benefit of the building, and the windows in the northerly wall of No. 1 Fifth avenue, that the rear half of the lot No. 3 should thereafter remain open and vacant, and that the said common owner built up and coverd the whole of the lot No. 1, with a four-story brick building, the northerly wall of which rested principally on the lot No. 3 Fifth avenue, the windows and lights in which said northerly wall, to the number of twenty, looked out upon and overlooked the open, vacant, and rear portion of said lot No. 3, and received

necessarily their only light, air, and ventilation therefrom; that the said building was so built by him to be used, as at present, for a boarding-school for young ladies, and lot No. 3 was left open and vacant by him for the benefit of No. 1, except that a building was built on the front, but not extending back so as to interfere in any way with the said windows or their light, or ventilation; that the said buildings on said two lots had remained as they were built to the present time, as it was intended by the common owner of them that they should do when he built them; that more than twenty years had elapsed since said buildings were erected; that the plaintiff was the owner of the lease of No. 1 Fifth avenue; that the defendant, being owner of lot No. 3, was erecting a building against the plaintiff's said northerly wall, and inserting beams of the new building in the plaintiff's walls, and closing up many the windows.

of

A temporary injunction was obtained, and upon deciding a motion for its continnance, the following opinion was delivered.

The defendant denied the intention of the common owner of the two lots, when he built upon them to keep the rear of lot No. 3 vacant, for the benefit of No. 1, and also the use of the windows for twenty years.

Barlow, Larocque & Macfarland, for plaintiff.

Charles M. Marsh, for defendant,- Cited in support of the point that an easement in light is not recognized in this country: Parker v. Foote, 19 Wend. 308; Palmer v. Wetmore, 2 Sandf. Ch. 316; Banks v. Am. Tract Soc., 4 Sandf. 438; Myers v. Gemmel, 10 Barb. 537; Pickard v. Collins, 23 Id. 444; Guest v. Reynolds, 68 Ill. 478; Keats v. Hugo, 115 Mass. 204; S. C., 15 Am. R. 80; Doyle v. Lord, 64 N. Y. 439; Mullen v. Stricker, 19 Ohio State, 135; Harverstick v. Sipe, 33 Penn. State, 368.

Shipman v. Beers.

BARRETT, J.-It is conceded that, as between adjoining owners, who are strangers to each other, one does not, by building on the line of his own ground, acquire a right to light from his neighbor's ground. It is claimed, however, that if both proprietors obtain their title from a common source, the same grantor having conveyed the tenement with the windows to one, and the ground overlooked to another, the windows cannot be obstructed.

This claim is based upon the dicta of SELDEN, J., in Lampman v. Milks (21 N. Y. 505), and it certainly is favored by Messrs. Tyler and Washburn in their treatises. The weight of authority, however, in this State, is decidedly the other way. The precise point was discussed in Myers v. Gemmel (10 Barb. 537), and it was there held that the landlord might lawfully darken or stop the windows by any erection on the other lot; that such an act was not in derogation of his own grant; and that he could not be restrained by injunction from so doing. So in Palmer v. Wetmore (2 Sandf. 316), it was decided that a landlord who owns a lot adjoining the demised premises has a right to build on such land, though he may thereby obstruct and darken the windows in the tenement demised. OAKLEY, Ch. J., said that, if this were not so, the landlord would be deprived of the full benefit of his own property. "We perceive," he adds, "no reason why a landlord, in respect of his tenant, is more restricted as to his vacant lots than he would be in respect of any other owner for years or in fee, of an adjacent house."

In Doyle v. Lord (64 N. Y. 439), these cases were approved of. EARL, J., observed that "under these authorities, if the lessor had sold the store and lot upon which it stood, twenty-five feet by fifty-one, the grantee would have taken no right to light and air from the balance of the lot. In that case the grantor could have built upon the balance of the lot, and thus

Shipman v. Beers.

have darkened the windows in the store without violating any rights of the grantee." The same rule now applies in Massachusetts (Keats v. Hugo, 115 Mass. 204). It was there explicitly held, that the grant of an easement of light and air is not implied from the grant of a house having windows overlooking land retained by the grantor.

The cases of Palmer v. Wetmore, and Myers v. Gemmel, were cited with approval, and the dicta of SELDEN, J., in Lampman v. Milks, rejected as obiter. It is true that the question is one of intent, but, in the absence of any covenant, that is not to be presumed from the mere existence of the windows. Such intention must be evident and palpable, that is, from mere inspection, as in the Jauncey court illustration referred to in Myers v. Gemmel. The intent to limit the use of a vacant space will not be lightly implied.

In the case at bar, the intention to afford No. 1 Fifth avenue the advantage of these additional windows only until it became convenient to build upon the adjoining lot, is as fair a presumption as that claimed by the plaintiff. The logical result of that claim is, that, in case no building at all had been erected on No. 3 Fifth avenue, and windows in the northerly wall of No. 1 Fifth avenue had been extended all along to the front of the building, the entire adjoining lot would have to remain perpetually vacant, or, at all events, that no structure could ever be erected thereon which would interfere with those windows.

The motion to continue the injunction must, therefore, be denied, and the temporary injunction dismissed, with $10 costs.