tenant, one owner has no easement by estoppel on the adjoining premises after the termination of the lease.

11. ADJOINING LANDOWNERS

OWNER.

GROUNDS OF RELIEF ADJOINING LAND

Where adjoining lands were leased, with permission to use them together for a single hotel, one owner is not entitled to equitable relief to prevent the other owner from building a division wall after the lease's termination.

Scott, J., dissenting.

Appeal from Trial Term, New York County.

Injunction suit by Stephen H. Olin, Alletta R. Bailey, and James Remsen Strong, as executors, etc., against Howard Thayer Kingsbury, individually and as sole surviving executor and trustee, etc. From a judgment granting an injunction, defendant appeals. Reversed, and judgment granted for defendant.

Argued before CLARKE, P. J., and SCOTT, SMITH, PAGE, and SHEARN, JJ.

Coudert Brothers, of New York City (Howard Thayer Kingsbury, of New York City, of counsel, and Frederic R. Coudert, of New York City, on the brief), for appellant.

William C. Murphy, Jr., of New York City (Stephen H. Olin, of New York City, of counsel, and John C. Clark, of New York City, on the brief), for respondents.

PAGE, J. In 1870, Nos. 15, 17, and 19 Irving Place were separate dwelling houses, and were at that time leased by their several owners to one Wehrle, who connected the buildings, using them as a hotel. When the leases expired in 1881, premises Nos. 15 and 17 were leased to the same lessees, who used the two as a hotel; premises No. 19 being used as a private dwelling. This continued until 1890, when the three premises were again united in one tenant and conducted as a hotel, and have been so conducted to the present date. The plaintiff is owner of premises No. 15 Irving Place, and the defendant is owner of premises Nos. 17 and 19 Irving Place. The tenant of these three premises surrendered his lease of premises Nos. 17 and 19 to the defendant, and gave him permission to erect a partition wall, which would cut off premises 15 from premises 17 and 19.

The Special Term decided that the plaintiff was entitled to an injunction on the ground that there had arisen an easement by necessity, and while the physical destruction of the property or a substantial change in it so that it could not subserve its original purpose would terminate the easement, the easement attaching to the buildings and not to the soil, there was not sufficient evidence that the buildings were at the present time unsuited for hotel purposes. The court has found that the facilities of premises 17 and 19 are essential to the enjoyment of premises 15, saying:

"If a partition wall should be put on the dividing line between Nos. 15 and 17, as is threatened by the defendant, the house No. 15 would occupy the whole lot, would have no front entrance or hallway, no elevator or kitchen range, or kitchen chimney or heating plant or water supply or electric light.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

The elevator, heating plant, range, boilers, kitchen flue, electric meter, pump and hot water tank, and other fixtures, and the use of the public rooms and hallway contained in Nos. 17 and 19 are necessary to the reasonable enjoy. ment of No. 15."

[1] These facts are insufficient to establish an easement of necessity, even if the other essentials to the creating of an easement had been present. Structural changes that would restore No. 15 to the condition it was in prior to 1870 can be made. These may be costly, but the property can nevertheless be put to any reasonable use of which it is susceptible, and its use fully enjoyed without imposing any easement or burden on the defendant's land. "While absolute physical necessity need not be shown, as in the case of land locked premises, or the support of a wall, there must be a reasonable necessity, as distinguished from mere convenience." Wells v. Garbutt, 132 N. Y. 430, 438, 30 N. E. 978; Ogden v. Jennings, 62 N. Y. 526, 531. See, also, Bauman v. Wagner, 146 App. Div. 191, 195, 130 N. Y. Supp. 1016; Scrymser v. Phelps, 33 Hun, 474; Hill v. Bernheimer, 78 Misc. Rep. 472, 140 N. Y. Supp. 35. That this property is capable of being separated into its original units, and full enjoyment of a separate use obtained, has been demonstrated. In 1881, as has been stated, No. 19 was separately occupied as a private dwelling after 11 years of use in connection with the other buildings as a hotel. It would undoubtedly be more convenient for the owner of No. 15 to have the property continued to be used in connection with 17 and 19, but no necessity for such use has been shown.

[2, 3] No easement exists in this case. Except in the case of certain relations that are recognized and enforced in equity, in analogy to the principles of law applicable to easements, an easement can be created only by a grant express or implied, or by prescription, and the latter, as modified by the modern doctrine, rests upon the presumption of a grant. In the case at bar there was never a grant from an owner of either parcel to the other, nor was the property at any time used by a common owner of the fee for hotel purposes.

The cases relied on by the respondent and those cited by Mr. Justice SCOTT may be divided into two classes: First, where an owner of land has, by an artificial arrangement prior to a severance, effected an advantage to one portion, to the burdening of the other, upon the severance of the ownership, the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance; second, where an easement has been established by prescription. In the first class are the following: Humphries v. Brogden, 12 Q. B. 739; Doe v. Morrell, Smith (N. H.) 255; Adams v. Marshall, 138 Mass. 228, 52 Am. Rep. 271; Thompson v. Miner, 30 Iowa, 386; Kane v. Templin, 158 Iowa, 24, 138 N. W. 901; Teachout v. Capital Lodge of Independent Order of Odd Fellows, 128 Iowa, 380, 104 N. W. 440; Powers v. Heffernan, 233 Ill. 597, 84 N. E. 661, 16 L. R. A. (N. S.) 523, 122 Am. St. Rep. 199; Foote v. Yarlott, 238 Ill. 54, N. E. 162; John Hancock Mutual Life Ins. Co. v. Patterson, 103 Ind. 582, 2 N. E. 188, 53 Am. Rep. 550; Lead City Miners' Union v. Moyer (D. C.) 235 Fed. 376. In Humphries v. Brogden, supra,

$7

the case involved the right of support of a house on the surface from impairment by the operation of a mine. The statement of Campbell, C. J., as to the right to support of an upper story of a building by the lower story, was dicta. He said:

"If the owner of an entire house conveying away the lower story only is without an express reservation entitled to the support of the lower story for the benefit of the upper story, why should not an owner of land, who conveys away the minerals only, be entitled to the support of the minerals for the benefit of the surface." Page 747. Thus demonstrating that the principle which controlled that decision was an implied reservation in the grant from

a common owner.

In Doe v. Morrell, supra, the house had been erected as one building by the owner of the entire plot. A portion of the land and onehalf of the building were sold under execution upon a judgment. It was held, on this severance of ownership, an easement in that portion of the entry, hallway, stairs and chimney, extending beyond the middle line, resulted in favor of the owner of the other half of the house. Adams v. Marshall, supra: The common owner devised two parcels in severalty, the dividing line running through a portion of a barn. The court held that an easement of support and shelter resulted, so that one owner could not tear down his portion of the barn without furnishing an equivalent support. The court said, however:

"The defendant, we have no doubt, could have lawfully erected a partition through the barn upon his line." 138 Mass. 238, 52 Am. Rep. 271.

In Thompson v. Miner, supra, tenants in common built a building covering the entire premises (consisting of three lots) and having a stairway and hall leading to the upper floors, and in pursuance of an agreement entered into before the building was erected, for the purpose of partitioning the property, one conveyed his interest in two of the lots, and the others conveyed their interest in the one lot to him. Held, this created an easement of the stairways and halls that were appurtenant to each and all of the lots. Thus this is an easement of implied reservation on the conveyance of a common ownership. In Kane v. Templin, supra, the halves of a building were devised to separate persons. Held, that the two devisees took as purchasers, and that there was an easement by implication in favor of that portion of the building in which there were no stairs or hallway to the use of those that existed in the other portion. The case of Teachout v. Capital Lodge of the Independent Order of Odd Fellows, supra, was where there was an express reservation in the grant from the common owner of a right to use the stairways. Powers v. Heffernan, supra: Easement in use of halls and stairways created by implied reservation in grant from common owner. In Foote v. Yarlott, supra, after making separate mortgages on two lots, upon which were erected two buildings, the common owner established a heating plant in one for the use of both. On severance of ownership, by decree of foreclosure, it was held that there was created an easement for the beneficial use of the heating plant. In John Hancock Mutual Life Ins. Co. v. Patterson, supra, there was an implied reservation of an easement in a grant from the common owner, which was also the case 168 N.Y.S.-49

of Lead City Miners' Union v. Moyer, supra. It thus appears that none of the cases above which are cited by the respondent are authorities tending to sustain his position in the case at bar, for here the element of a grant from a common owner is lacking.

[4] Many cases are cited by the respondent where an easement has been acquired over adjoining property by prescription. No purpose will be served by reviewing them in detail. The modern law of rights acquired by prescription rests upon the adverse user, for which no permission can be shown, for such a length of time that a grant will be presumed, which has been lost. In other words, adverse user will ripen into an easement, as adverse possession would establish a title, and upon the same theory of law. It also follows that, if the use is exercised by permission, no matter how long the use may be, it cannot ripen into a permanent right; for, as was said by Judge Cowen: "It is well known that a single lisp of acknowledgment by the defendant that he claims no title fastens a character upon his possession which makes it unavailable for ages. No matter that * * he and those under whom he claims may have holden peaceably and without hindrance, molestation, or even claim of the owner. Non constat that the whole may not have been as lessee or by comity, until the owner shall reach the time when for purposes which remain suspended on account of mere convenience of his neighbor, he comes in for the enjoyment of his conceded right." Colvin v. Burnet, 17 Wend. 564, 568.

The reason for this is clear. If a known right to use the property exists, the user is presumed to be in the exercise of that right, and no other grant of right can be presumed.

[5, 6] This brings us to the question whether the plaintiff, owner of lot 15, has acquired an easement by prescription against the defendant owner of lots 17 and 19. It is true that a tenant or succeeding tenants might by adverse use of property for the statutory period create prescriptive rights in adjoining property which would inure to the benefit of their landlord, but there is clearly no adverse use by the tenant of lot 15 when he uses the adjoining premises, lots 17 and 19, with the express permission of the owner thereof; and still less is there an adverse use by the tenant of lot 15 of premises 17 and 19 when any use of premises 17 and 19 was made by the tenant of lot No. 15 under a lease of premises 17 and 19, which gave him express permission to make the use of it that was made. The latter is true, because a tenant cannot hold adversely to or prescribe against his landlord. Jones v. Reilly, 174 N. Y. 97, 66 N. E. 649. It should be noted in this connection that the court made the following finding in its decision:

"All these structural changes were made by the tenants only and under an express permission contained in the several leases of the respective parcels and became the property of the respective owners under the terms of such leases. No alterations or additions were made by the owners or either of them."

There were none of the elements in this case from which an easement by agreement might be predicated.

[7, 8] There was no direct evidence of an agreement between the owners in regard to the use of the premises as a hotel, and an agree

ment could be established only by inference. In this connection the following findings of fact made by the court should be noticed:

"(33) There was an agreement between the plaintiffs and the defendant and between the plaintiffs and the defendant's predecessors that the building upon the said three lots should be used as a hotel."

"(37) The respective owners of No. 15 on the one hand, and of Nos. 17 and 19 on the other, have at no time acted conjointly in regard to the property, or entered into any agreement with each other in respect to its joint or combined use or otherwise; but each owner has at all times dealt separately and independently with his own property and with the tenant or tenants thereof."

Since these findings are inconsistent, the defendant appellant is entitled to the benefit of 37, the one most favorable to him. Whalen v. Stuart, 194 N. Y. 495, 87 N. E. 819; Kinney v. Kinney, 221 N. Y. 133, 116 N. E. 772. Aside from this, there is no evidence tending to sustain the first. The only agreements that were made were the separate agreements with the tenant by each landlord that the tenant could use the demised premises for a hotel in connection with the other premises. This agreement would be limited to the term of the lease and the parties thereto. It cannot be extended beyond the term without a new agreement, nor could it inure to the benefit of any one except the parties thereto, their personal representatives, or assigns.

[9, 10] Lastly, the plaintiffs claim that they have acquired an easement by estoppel. But estoppel can only arise where a person has changed his position with relation to, or expended money upon, his property, relying upon an existing easement in the adjoining property, and without which the act done or the expenditure would have been useless, and the adjoining owner has not interposed to forbid or prevent it. In such cases equity has interposed, and enjoined the adjoining owner from interrupting the enjoyment of the easement. The necessary elements to establish such an estoppel are lacking in this case. First, the owner of No. 15 has not changed his position, relying upon the joint use of the property with Nos. 17 and 19. The leases by both owners were coterminous, and were merely a permission of the tenant to so use the property during the period of the lease. Neither made any alteration in the premises or expended any money. thereon. Such changes as were made were the act of the tenant for his more convenient use of the premises, and were done with the separate consent of each owner and related to the use of his own premises. It was limited by the terms of the lease, and there was no agreement express or implied that the owner should continue such use after the term of the lease, or so long as each expressed his consent, with like limitations, by a renewal thereof. The plaintiffs rely upon the case of Fronckowiak v. Platek, 152 App. Div. 301, 136 N. Y. Supp. 522, affirmed 208 N. Y. 629, 102 N. E. 1103, which is clearly distinguishable from the instant case and comes clearly within the general rule above stated. In that case a husband and wife purchased property in 1881, upon which they erected an addition to the building. Connected with this addition were sheds and outbuildings. These buildings were all used together and occupied continuously by them until the death of the husband intestate in 1906, and thereafter by the wife until her death in 1910. "The wife, equally with the husband, con