MARSHALL ORME WILSON and RICHARD T. WILSON, JR., Individually and as Executors of and Trustees under the Will of RICHARD T. WILSON, Deceased, and Others, Respondents,
JAMES B. FORD and Others, Appellants.
APPEAL by the defendants, James B. Ford and others, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 21st day of June, 1911, upon the report of a referee.
Middleton S. Borland [John M. Bowers and David G. George with him on the brief], for the appellants James B. Ford and others.
David B. Ogden [Edward E. Sprague with him on the brief], for the appellants Fleischmann Realty and Construction Company and another.
John G. Milburn, for the respondents.
Judgment affirmed, with costs, on opinion of Hon. DAVID LEVENTRITT, Referee.
Present--INGRAHAM, P. J., LAUGHLIN, CLARKE, SCOTT and MILLER, JJ.
The following is the opinion of the referee:
DAVID LEVENTRITT, Referee:
This is an action to restrain the defendants from making any use of a certain alleyway or, failing in that, to restrain its use for business purposes.
The facts material to this controversy are best set out in connection with the following diagram:
The present plaintiffs, as successors to the title of Robert T. Wilson, the original plaintiff, are the owners in fee simple of lot No. 1, lot No. 7, lot No. 6 and two equal undivided third parts of lot No. 5, which is an alley. The defendants are the owners and lessees of lot No. 3.
All these lots were part of premises formerly owned by Margaret Burr, Mary Burr and Sarah Burr as tenants in common, and were, by two agreements between the owners, placed under perpetual restrictions excluding business buildings. One, executed in 1861, covered all the lots except lot No. 3. In this agreement the parties covenanted for themselves, their heirs and assigns not to 'erect on any of the aforesaid lots of land or any part thereof any buildings other than dwelling houses at least two stories high of brick or stone with the ordinary
yard appurtenances to dwelling houses, including stables for private use or churches of the same materials.' It provided that all purchasers, lessees and occupants of any of the lots should be required to come under and be bound by the restriction which should run with the land. The other agreement, covering among other land lot No. 3, was entered into in 1857 and imposed substantially the same restriction. While private stables were not specifically mentioned 'ordinary yard appurtenances' were authorized. It also provided that the restriction should be binding on all purchasers, lessees and occupants and should run with the land. These several restrictions were observed by the successive owners of the lots until a comparatively recent time. The residence on lot No. 3 was occupied as such until 1901 when it was leased to tenants who occupied it for business purposes until 1907. The residence was then replaced by a twelve-story business and office building. The residence building on lot No. 2 still stands but for several years past has been devoted to business. Lots Nos. 1 and 7, owned by the plaintiffs, are still occupied by private residences.
On the rear part of lot No. 1, and next to the alley, there is a private stable used in connection with the residence on that lot. On lot No. 4 there is a structure formerly used as a stable in connection with lot No. 2, but which, for several years past, has been used for business purposes. Lot No. 3 has never had a stable on it.
In 1906 the then owner of the premises now owned by the plaintiffs joined in an agreement releasing from the Burr restriction of 1861 the various properties which it covered. The plaintiffs and their predecessors in title have not, however, consented to the use of the alley in connection with business establishments. Protests were made against the use of the alley for the purposes of the business conducted in the residential building on lot No. 3 and against the use of the alley in connection with the erection and occupancy of the present business building. The present lessees have continued to use the alley for carting goods to the building and for removing ashes therefrom, thus very materially increasing the servitude on the alley.
The rights in the alley are defined by an agreement made in
1864. Peter H. Morss was the owner of lot No. 1, Thomas T. Sturges of lots Nos. 2 and 4, and James S. Sturges of lot No. 3, while the three were equal owners and tenants in common of lot No. 5. They executed an agreement under date of January 2, 1864, reciting their respective titles and providing that each of them, their heirs and assigns 'shall forever hereafter have and enjoy the use in common, exclusive of all other persons of said lot Number five as a passageway for themselves, their servants or other deputy, either on foot or with horses, carriages or otherwise to and from their respective lots aforesaid and to and from the stables built and to be built for private use on their said respective lots.' In consideration of this agreement, the parties mutually covenanted and agreed, for themselves and their respective heirs and assigns that they 'will each bear, pay and discharge his equal proportion of all taxes, assessments and expenses attending the use of said lot Number Five or chargeable thereon.'
On August 11, 1868, James S. Sturges conveyed lot No. 3 and his equal undivided third part of lot No. 5 to John R. Ford, and on the same day, by separate deed, also conveyed to Ford lot No. 7. Lot No. 7 abutting on the easterly side of the alley had no easement therein. Ford, however, acquired an easement under the deed conveying lot No. 3 and the undivided interest in the alley.
Ford by deed dated February 26, 1879, conveyed to the trustees of the estate of Augustus Embury lot No. 7 together with the undivided third part of the alley with the following reservation: 'Reserving however to the said party of the first part the right of using said alley in the manner provided in agreement recorded in liber 916 of Conveyances page 82, it being the intention of the parties of the first part hereto to convey to the parties of the second part hereto all the rights, privileges and immunities contained in an ...