Burke v. Nichols

2 Keyes 670

• Court: New York Court of Appeals
• Decided: June 15, 1866
• Status: Published

Opinion

Smith, J.

It is a familiar rule, that a grant of land, eo nomine, conveys, not only the ground or soil, but every corporeal thing which is attached to the earth, whether by the course of nature, as trees, herbage and water, or by the hand of man, as houses and other structures. (Co. Litt., 4 a; 3 Kent., 486.) The defendant is, therefore, correct in claiming that, under his deed from the plaintiff, his rights in respect to the dwelling-house and fence on the lot thereby conveyed, are the same as if such structures had been specifically mentioned in the grant. If the grantor had title to them, it passed by the deed; if he had not title to such structures, or any part of them, his covenant of seisin was broken, to that extent, and the • defendant has a remedy for the breach. But the rights of the defendant, thus acquired, do not extend to such parts of the house and fence as are attached to and rest upon the soil of the adjoining lot. Those structures, by the operation of the very principle upon which the defendant relies, are a part of the land on which they stand; and it is an acknowledged rule that land does not pass as an appurtenant to land. (15 Johns., 447; 3 Sandf., 333.) The word “ appurtenances,” in a deed, will not convey any corporeal real property, but only incorporeal easements, or rights and privileges. (Co. Litt., 121; Buszard v. Capel, 8 Barn. & Cres., 141; S. C., 6 Bing., 150.) As the adjoining lot is not covered by the deed, the' defendant has no claim against the plaintiff by reason of failure of title to that portion of the house and fence which stands thereon.

I am in favor of affirming the judgment.

All the judges concurring,

Judgment affirmed.