The opinion of the court was delivered by
Magie, J.
This cause was heard below upon the bill alone. No answer having been put in thereto, the allegations of the bill are, therefore, to be taken as true, and the only question here is, whether ■upon the facts alleged the decree is erroneous.
The decree enjoins appellant from interfering with the use by respondent Mayo, his family, tenants, servants and legal representatives, of certain stair and passageways in a building in Newark, and from obstructing such ways to their injury.
The facts alleged in the bill are set out with great particularity in the opinion of the learned vice-chancellor, but as a statement of some of them seems necessary to explain my views, a brief resumé precedes this opinion.
On behalf of appellant it was contended that the building in question is a mere personal chattel, and that, in such a chattel, no easement of way in favor of one part thereof, over another part thereof, can be acquired.
When a building has been erected by one, on lands of another, upon an agreement, express or implied, that it may be removed at the pleasure of the builder or on the demand of the landowner, the building is no doubt to be classed in that division of [623] property which we call purely personal. Pope v. Skinkle, 16 Vr. 39. But in this, case the building was attached to -land, in which its owners had an interest, classified not as a mere chattel, but as a chattel real. By the terms of the .lease the building ■could not be severed from its connection, until, at the expiration ■of the lease, the land-owner failed to exercise the option given him to take it at its appraised value. Under such circumstances, in my judgment, the building was annexed to land and the interest of the lessees in both building and land was a chattel real. If, at the expiration of the term, the lessor did not take the building, the right to remove at the pleasure of the lessees would ■arise and the building would become a mere chattel; but, if the lessor exercised its option and paid the appraised value, or, probably, if the lessees failed to remove within a reasonable time .after the expiration of the term, the building would become ■annexed to the fee and be classed as realty.
A lessee of land, being entitled to its exclusive possession •during the continuance of the term, may, unless restrained by •covenants, dispose of and pass to another, by appropriate acts, the whole or part of his interest. In this mode he may doubtless grant to others a right of passage over- the land leased hy ■him, which right would have all the qualities of an easement of way during the running of the term. Wallace v. Fletcher, 10 Fost. 434; Gayford v. Moffat, L. R. (4 Ch. App.) 133.
A servitude of that character might be created in favor of any ■other estate, even though the latter be an estate of freehold not of inheritance or an estate less than freehold. That the servient .and dominant estates are estates for life or years would not at all affect the qualities of the right so long as it continues, but ■only its duration. If the-dominant estate is a terminable estate, the right ,of passage would cease when that estate terminated; if the servient estate is an estate of like character, the right of passage would (at least when created by grant of the lessee) cease when it terminated. Such a right, while it endures, -has every •characteristic of an easement, and should be governed by the u’ules relating to such incorporeal hereditaments.
[624] The grant of a right of passage need not be restricted to the-surface of the soil. Separate estates may exist in upper and lower portions of the same building, and in the surface of the-soil and the underground strata. When such an estate exists in an upper story of a building, or in the surface of land, there are-of necessity attached thereto easements of support, and in the case-of a building, of access from the lower stories. Washb. Easem. 588, 595. As ownership extends, unless restrained by the grant, indefinitely upward and downward, a right of passage may be-created through vaults and cellars under the surface, and through halls and passages above the surface, as well as upon the very surface.
It is next urged that, there has been no grant of the right of passage claimed.
The deed of October 28th, 1867, which passed to Garrabrant a right to that portion of the demised premises on which the hall,, •stairway and passages are located, contained an express reservation of the right to use such passages to Ford and his legal representatives, for the benefit of the remainder of the demised' premises retained by Ford.
It is contended that the right thereby created, if any, was one-merely personal to Ford and has ceased by his death. That Ford is dead does not appear in the printed case. But that circumstance I deem of no importance. The right intended to be-created was only a right in an estate for years and in favor of an estate for years. These interests do not descend to heirs, hut-pass to executors and administrators. They can be creáted without the use of the word “ heirs,” and, therefore, any interest in-them can be so created. The reservation to Ford and his legal representatives would sufficiently create such an interest if it is-effective as a grant.
Such a reservation amounts to a grant of a right of passage. Washb. Easem. 29. As the deed was inter partes, the right-reserved would have been deemed granted, although Garrabrant •had not executed the deed. Earle v. New Brunswick, 9 Vr. 47; Cooper v. Lowenstein, 10 Stew. Eq. 284; Rosencrans v. Snover, 4 C. E. Gr. 420. But Garrabrant actually executed both deeds-[625] in which the reservation was contained and so formally granted the way over the interest he thereby acquired. •
I conclude, therefore, that by the very terms of the reservation in the deed between Ford and Garrabrant, a right of passage pr way over the hall, stairway and transverse passages in that part of the building now leased to appellant, in favor of that part now leased to the respondent, Mayo, was created, which had all the qualities of an easement, but it was imposed upon an estate for years in favor of a like estate, and would terminate whenever the dominant or servient estate ceased to exist in persons entitled to or affected by the creation of the right.
"When the right of passage was created, Ford, by the assignment of Maplesden, had acquired the sole interest in the demised premises and the right to a renewed and extended term. Ford’s assignment to Garrabrant of a portion of the demised premises admitted the latter to an interest in the same, including a right in any renewed or extended term. The extended term was granted to Ford and Garrabrant as tenants in' common. While they thus obtained a common title to the whole demised premises, it does not admit of a doubt that they each became in equity entitled to the several possession" of those parts thereof into which they had divided them for several occupancy.. The renewed term was, however, a mere continuation of the former term.
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The opinion of the court was delivered by
Magie, J.
This cause was heard below upon the bill alone. No answer having been put in thereto, the allegations of the bill are, therefore, to be taken as true, and the only question here is, whether ■upon the facts alleged the decree is erroneous.
The decree enjoins appellant from interfering with the use by respondent Mayo, his family, tenants, servants and legal representatives, of certain stair and passageways in a building in Newark, and from obstructing such ways to their injury.
The facts alleged in the bill are set out with great particularity in the opinion of the learned vice-chancellor, but as a statement of some of them seems necessary to explain my views, a brief resumé precedes this opinion.
On behalf of appellant it was contended that the building in question is a mere personal chattel, and that, in such a chattel, no easement of way in favor of one part thereof, over another part thereof, can be acquired.
When a building has been erected by one, on lands of another, upon an agreement, express or implied, that it may be removed at the pleasure of the builder or on the demand of the landowner, the building is no doubt to be classed in that division of [623] property which we call purely personal. Pope v. Skinkle, 16 Vr. 39. But in this, case the building was attached to -land, in which its owners had an interest, classified not as a mere chattel, but as a chattel real. By the terms of the .lease the building ■could not be severed from its connection, until, at the expiration ■of the lease, the land-owner failed to exercise the option given him to take it at its appraised value. Under such circumstances, in my judgment, the building was annexed to land and the interest of the lessees in both building and land was a chattel real. If, at the expiration of the term, the lessor did not take the building, the right to remove at the pleasure of the lessees would ■arise and the building would become a mere chattel; but, if the lessor exercised its option and paid the appraised value, or, probably, if the lessees failed to remove within a reasonable time .after the expiration of the term, the building would become ■annexed to the fee and be classed as realty.
A lessee of land, being entitled to its exclusive possession •during the continuance of the term, may, unless restrained by •covenants, dispose of and pass to another, by appropriate acts, the whole or part of his interest. In this mode he may doubtless grant to others a right of passage over- the land leased hy ■him, which right would have all the qualities of an easement of way during the running of the term. Wallace v. Fletcher, 10 Fost. 434; Gayford v. Moffat, L. R. (4 Ch. App.) 133.
A servitude of that character might be created in favor of any ■other estate, even though the latter be an estate of freehold not of inheritance or an estate less than freehold. That the servient .and dominant estates are estates for life or years would not at all affect the qualities of the right so long as it continues, but ■only its duration. If the-dominant estate is a terminable estate, the right ,of passage would cease when that estate terminated; if the servient estate is an estate of like character, the right of passage would (at least when created by grant of the lessee) cease when it terminated. Such a right, while it endures, -has every •characteristic of an easement, and should be governed by the u’ules relating to such incorporeal hereditaments.
[624] The grant of a right of passage need not be restricted to the-surface of the soil. Separate estates may exist in upper and lower portions of the same building, and in the surface of the-soil and the underground strata. When such an estate exists in an upper story of a building, or in the surface of land, there are-of necessity attached thereto easements of support, and in the case-of a building, of access from the lower stories. Washb. Easem. 588, 595. As ownership extends, unless restrained by the grant, indefinitely upward and downward, a right of passage may be-created through vaults and cellars under the surface, and through halls and passages above the surface, as well as upon the very surface.
It is next urged that, there has been no grant of the right of passage claimed.
The deed of October 28th, 1867, which passed to Garrabrant a right to that portion of the demised premises on which the hall,, •stairway and passages are located, contained an express reservation of the right to use such passages to Ford and his legal representatives, for the benefit of the remainder of the demised' premises retained by Ford.
It is contended that the right thereby created, if any, was one-merely personal to Ford and has ceased by his death. That Ford is dead does not appear in the printed case. But that circumstance I deem of no importance. The right intended to be-created was only a right in an estate for years and in favor of an estate for years. These interests do not descend to heirs, hut-pass to executors and administrators. They can be creáted without the use of the word “ heirs,” and, therefore, any interest in-them can be so created. The reservation to Ford and his legal representatives would sufficiently create such an interest if it is-effective as a grant.
Such a reservation amounts to a grant of a right of passage. Washb. Easem. 29. As the deed was inter partes, the right-reserved would have been deemed granted, although Garrabrant •had not executed the deed. Earle v. New Brunswick, 9 Vr. 47; Cooper v. Lowenstein, 10 Stew. Eq. 284; Rosencrans v. Snover, 4 C. E. Gr. 420. But Garrabrant actually executed both deeds-[625] in which the reservation was contained and so formally granted the way over the interest he thereby acquired. •
I conclude, therefore, that by the very terms of the reservation in the deed between Ford and Garrabrant, a right of passage pr way over the hall, stairway and transverse passages in that part of the building now leased to appellant, in favor of that part now leased to the respondent, Mayo, was created, which had all the qualities of an easement, but it was imposed upon an estate for years in favor of a like estate, and would terminate whenever the dominant or servient estate ceased to exist in persons entitled to or affected by the creation of the right.
"When the right of passage was created, Ford, by the assignment of Maplesden, had acquired the sole interest in the demised premises and the right to a renewed and extended term. Ford’s assignment to Garrabrant of a portion of the demised premises admitted the latter to an interest in the same, including a right in any renewed or extended term. The extended term was granted to Ford and Garrabrant as tenants in' common. While they thus obtained a common title to the whole demised premises, it does not admit of a doubt that they each became in equity entitled to the several possession" of those parts thereof into which they had divided them for several occupancy.. The renewed term was, however, a mere continuation of the former term.
A grant of a right in demised premises by one having a terminable lease, with a right of renewal, will not cease to have effect on the termination of the lease, if there is, in fact, a renewal thereof. The renewed lease is deemed, at least in equity, to be a mere continuance of the original term for the preservation and protection of rights acquired therein. Tayl. Land. & T. § 340; Wood. L. & T. 678, 680; 1 Platt. Leas. 762; Ex parte Grace, 1 Bos. & P. 376; Waters v. Bailey, 2 Younge & C. 219; Holdridge v. Gillespie, 2 Johns. Ch. 30; Phyfe v. Wardell, 5 Paige 268; Gibbes v. Jenkins, 3 Sandf. Ch. 130; Mitchell v. Reed, 61 N. Y. 123.
When, therefore, Ford and Garrabrant renewed their lease in common, but for their several benefit, their renewed rights bore [626] the previous relation. The right of passage continued imposed on the servient estate in favor of the dominant.
When the lease given to Ford and Garrabrant expired, new leases were given to those who had become entitled to separate portions of the demised premises. Respondent Mayo procured a new lease for that portion to which he had acquired a right under Ford’s assignment. Appellant procured a lease for that portion to which Garrabrant had acquired a right under Ford’s assignment, which right had passed to his wife, and had been relinquished in favor of appellant. Each renewed term was a continuance of the former interest. Appellant’s term was expressly declared by her lease to be a renewal of the original lease. Thereby all the rights previously acquired were preserved and continued.
Appellant further contends that she had no notice of the right ■of passage over the premises when she took her lease. There are two answers to this contention. In the first place, she acquired her right to renew, by virtue of which she obtained the lease from Garrabrant. He had created the right of passage and could not convey to her a greater, right than he thereafter possessed. In the next place, there was notice to appellant, both in the open and plain user, apparent from the construction of the building and from the reference made in her lease to the title of Garrabrant, under whom she obtained it. That title disclosed the existence of the right contended for.
For these reasons I think the decree right, and shall vote to affirm it.
I may add that, had I adopted the views of the vice-chancellor as to the classification of this building as a purely personal chattel, I should have had no difficulty in reaching the conclusion he arrived at. For, I doubt not that, in a chattel of such peculiar character, rights may be created, in all respects analogous to those rights which are called easements; that when the parties in interest create such rights, they are not objectionable as opposed to public policy, nor as not capable of being the subject of contract, and that such rights may and should be protected by the courts as the analogous easements would be..
[627] For affirmance — The Chief-Justice, Depue, Dixon, Knapp, Mague, Reed, Scudder, Van Syokel, Brown, .'Smith, Whitaker — 11.
For reversal — None.