Birdsall v. Tiemann

12 How. Pr. 551

• Court: New York Supreme Court
• Decided: February 15, 1855
• Status: Published

Opinion

Mitchell, Justice.

Tiemann owns in fee, and leased to Fielder without any covenants against nuisances or the erection of steam-engines, a lot adjoining the plaintiff’s house and lot. The deed to him did not contain any such covenants, being executed on a sale on foreclosure of a mortgage, nor did the mortgage contain them. But Mr. Ruggles, while he owned both lots, and many others in the neighborhood, conveyed them all with such covenants—and the successive grantees from him conveyed in like manner down to the one who conveyed to the mortgagor.

The effect of such covenants was considered and settled in Barrow agt. Richard, (8 Paige, 351,) and both Vice Chancellor M£Coun and the Chancellor held that they created easements on the lands for the benefit of the other respective land owners. In that case there was no allegation that the covenants were contained in the deed to the defendant; and if an easement was created, it was unnecessary to insert them in subsequent conveyances.

Neither of the defendants has, therefore, a right to erect a steam-engine on their premises. Fielder, when written to on the subject, threatened that he would erect a steam-engine when he chose, and had already constructed a chimney fit only for that purpose. The plaintiff was justified, therefore, in seeking to restrain him by injunction: and a perpetual injunction mast be granted against him, with costs.

Tiemann, the landlord, has done nothing to show a disposition to violate his covenant: he must, therefore, have his costs of defence. But as the chimney now erected is erected for the purpose of a steam-engine, and may remain after Fielder leaves, it is proper that the injunction restrain both defendants, and all claiming under them, or either of them, from erecting the steam-engine.