Hogan, J.
The agreement of 1864 recited the ownership by Peter H. Morss of lot number one, by Thomas T. Sturgess of lots numbers two and four, by James 8. Sturgess of lot number three, the ownership in common by Peter H. Morss and Thomas T. Sturgess of lot number six, and the ownership by Peter H. Morss, Thomas
T. Sturgess and James S. Sturgess as tenants in common of lot number five. The several lots mentioned were described in the agreement by metes and bounds, and the parties thereto did covenant and agree with each other, and for and on behalf of the heirs and assigns of each party, that the parties thereto and their respective heirs and assigns should forever have and enjoy the use in common
exclusive
of all other persons of lot number five for the purposes therein mentioned. The agreement thus executed was recorded as a conveyance and was effectual as a grant to establish a perpetual easement in lot number five, which attached as an appurtenance to the remaining premises specified in the agreement.
John E. Ford became the owner of lot number three and of one equal undivided one-third interest in the fee of lot number five, formerly owned by James S. Sturgess, and subsequently obtained title to lot number seven, which, though adjacent to lot number five, had no right of use therein as it was not referred to in the agreement of 1864. February 26th, 1879, Mr. Ford conveyed to Benjamin K. Eissam, Peter Augustus Embury and Clarence D. Embury, trustees of the estate of Augustus Embury, lot number seven, together with one equal undivided one-third part of lot number five. Following the description of the premises of lot number five the deed contained the following language:
“Reserving, however, to the said party of the first part [Ford] the right of using said Alley [lot number five] in the manner provided in agreement recorded, etc. [agreement of 1864], it being the intention of parties of the first part hereto [Ford] to convey to the parties of the second part hereto all the rights, privileges and immunities contained in the agreement recorded [agreement of 1864] except as hereinbefore reserved.”
The referee held that John R. Ford by the deed or conveyance of his undivided equal one-third of the fee of lot number five in 1879 extinguished the then existing ease
ment in favor of lot number three under the agreement of 1864, excepting the
personal
right reserved to himself to use said lot number five in the manner provided in the agreement of 1864.
It is a well-established principle of law that an easement in gross will not be presumed where it can fairly be construed to be appurtenant to land. Having in mind this rule of law we pass to a consideration of the conveyance of Mr. Ford to ICissam and others in 1879, which must be construed as to give effect to the intent of the parties manifested by the language used, subject to the further rule that when the language used is susceptible of more than one interpretation the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject-matter of the instrument.
(French
v.
Carhart,
1 N. Y. 96;
Bridger
v.
Pierson,
45 N. Y. 601;
Blackman v. Striker,
142 N.Y. 555, 563; 3 R. S. [7th ed.] title
5,
section
2,
now incorporated in Consolidated Laws; Real Property Law, section 240.)
Upon the argument of the appeal counsel indulged in extended discussion as to the probable intention in the mind of Mr. Ford at the time of the execution of the deed. It would not be profitable to analyse the arguments presented or to speculate as to the mental operations of Mr. Ford at that time. His intention, so far as ascertainable, should be determined from the various written instruments in connection with the acts of all the parties. In the deed from Ford to Kissam, the intention expressed by Mr. Ford was “to convey to the parties of the second part hereto all the rights, privileges and immunities contained in the agreement.” The rights and privileges contained in the agreement of 1864 were the right and privilege to use lot number five as a passageway in the manner and for the purposes therein mentioned. The “ immunity ” in the agreement was the exclusion of all persons other than Mr. Ford, his heirs and assigns, and
the remaining parties thereto, their heirs and assigns, from the use of lot number five. The intention of Hr Ford thus expressed was an attempt upon his part to grant to lot number seven.an easement in lot number five for all the purposes and with the immunity mentioned in the agreement of
1864.
We fail to find language expressly or by implication indicating any intention on the part of Mr. Ford to sever and convey .any interest in lot number five appurtenant to lot number three. On the contrary, there was disclosed an intention to convey a less estate than Mr. Ford had in lot number five appurtenant to lot number three for the deed contained a reservation to Mr. Ford of the right to use lot number five in the maimer provided for in the agreement of 18(54, which “right” was in perpetuity for Mr. Ford, his heirs and assigns, and to the exclusion of all others save the owners (their heirs and assigns) of the lots mentioned in the agreement. The reservation thus made must be construed as an exception and cannot he limited to Mr. Ford, for the use of the term “heirs’’was not requisite to create or convey an estate in fee. (3 R. S. [7th ed.] page 2205, now Real Property Law, section 240.) Notwithstanding the fact that Mr. Ford owned the fee in lot number seven and an undivided one-third part in lot number five, he could not create or convey an easement in lot number five for the benefit of lot number seven for any purpose whatsoever. He was a tenant in common of lot number five and under the agreement of 1864 the use of the same was limited to the “respective lots aforesaid,”
i. e.,
the lots specified therein which did not include lot number seven.
If as owner of lot number seven he was inhibited from the use of lot number five in connection therewith, he could not confer upon another a use which he as owner did not possess and which had been granted to others under the agreement of 1864. While he might convey tiie one undivided one-tliird fee in lot number five, the right to use lot number five was then appurtenant in per
petuity to the certain lands specifically mentioned in the agreement of 1864, and the owners of other lands, cotenants with Ford in the ownership of lot number five, could not be prejudiced by any act of Ford in an attempt to create an easement for the benefit of lot number seven in the premises held in common.
(Palmer
v.
Palmer,
150 N. Y. 139, 149;
Crippen
v.
Morss,
49 N. Y. 63;
Marshall
v.
Trumbull,
28 Conn. 183.)
We are also permitted to consider the dealings and conduct of any of the parties claiming under the agreement of 1864, or mider the title from Ford to Kissam.
(Watson
v.
City of New York,
67 App. Div. 573; affd., 175 N. Y. 475.)
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Hogan, J.
The agreement of 1864 recited the ownership by Peter H. Morss of lot number one, by Thomas T. Sturgess of lots numbers two and four, by James 8. Sturgess of lot number three, the ownership in common by Peter H. Morss and Thomas T. Sturgess of lot number six, and the ownership by Peter H. Morss, Thomas
T. Sturgess and James S. Sturgess as tenants in common of lot number five. The several lots mentioned were described in the agreement by metes and bounds, and the parties thereto did covenant and agree with each other, and for and on behalf of the heirs and assigns of each party, that the parties thereto and their respective heirs and assigns should forever have and enjoy the use in common
exclusive
of all other persons of lot number five for the purposes therein mentioned. The agreement thus executed was recorded as a conveyance and was effectual as a grant to establish a perpetual easement in lot number five, which attached as an appurtenance to the remaining premises specified in the agreement.
John E. Ford became the owner of lot number three and of one equal undivided one-third interest in the fee of lot number five, formerly owned by James S. Sturgess, and subsequently obtained title to lot number seven, which, though adjacent to lot number five, had no right of use therein as it was not referred to in the agreement of 1864. February 26th, 1879, Mr. Ford conveyed to Benjamin K. Eissam, Peter Augustus Embury and Clarence D. Embury, trustees of the estate of Augustus Embury, lot number seven, together with one equal undivided one-third part of lot number five. Following the description of the premises of lot number five the deed contained the following language:
“Reserving, however, to the said party of the first part [Ford] the right of using said Alley [lot number five] in the manner provided in agreement recorded, etc. [agreement of 1864], it being the intention of parties of the first part hereto [Ford] to convey to the parties of the second part hereto all the rights, privileges and immunities contained in the agreement recorded [agreement of 1864] except as hereinbefore reserved.”
The referee held that John R. Ford by the deed or conveyance of his undivided equal one-third of the fee of lot number five in 1879 extinguished the then existing ease
ment in favor of lot number three under the agreement of 1864, excepting the
personal
right reserved to himself to use said lot number five in the manner provided in the agreement of 1864.
It is a well-established principle of law that an easement in gross will not be presumed where it can fairly be construed to be appurtenant to land. Having in mind this rule of law we pass to a consideration of the conveyance of Mr. Ford to ICissam and others in 1879, which must be construed as to give effect to the intent of the parties manifested by the language used, subject to the further rule that when the language used is susceptible of more than one interpretation the courts will look at the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject-matter of the instrument.
(French
v.
Carhart,
1 N. Y. 96;
Bridger
v.
Pierson,
45 N. Y. 601;
Blackman v. Striker,
142 N.Y. 555, 563; 3 R. S. [7th ed.] title
5,
section
2,
now incorporated in Consolidated Laws; Real Property Law, section 240.)
Upon the argument of the appeal counsel indulged in extended discussion as to the probable intention in the mind of Mr. Ford at the time of the execution of the deed. It would not be profitable to analyse the arguments presented or to speculate as to the mental operations of Mr. Ford at that time. His intention, so far as ascertainable, should be determined from the various written instruments in connection with the acts of all the parties. In the deed from Ford to Kissam, the intention expressed by Mr. Ford was “to convey to the parties of the second part hereto all the rights, privileges and immunities contained in the agreement.” The rights and privileges contained in the agreement of 1864 were the right and privilege to use lot number five as a passageway in the manner and for the purposes therein mentioned. The “ immunity ” in the agreement was the exclusion of all persons other than Mr. Ford, his heirs and assigns, and
the remaining parties thereto, their heirs and assigns, from the use of lot number five. The intention of Hr Ford thus expressed was an attempt upon his part to grant to lot number seven.an easement in lot number five for all the purposes and with the immunity mentioned in the agreement of
1864.
We fail to find language expressly or by implication indicating any intention on the part of Mr. Ford to sever and convey .any interest in lot number five appurtenant to lot number three. On the contrary, there was disclosed an intention to convey a less estate than Mr. Ford had in lot number five appurtenant to lot number three for the deed contained a reservation to Mr. Ford of the right to use lot number five in the maimer provided for in the agreement of 18(54, which “right” was in perpetuity for Mr. Ford, his heirs and assigns, and to the exclusion of all others save the owners (their heirs and assigns) of the lots mentioned in the agreement. The reservation thus made must be construed as an exception and cannot he limited to Mr. Ford, for the use of the term “heirs’’was not requisite to create or convey an estate in fee. (3 R. S. [7th ed.] page 2205, now Real Property Law, section 240.) Notwithstanding the fact that Mr. Ford owned the fee in lot number seven and an undivided one-third part in lot number five, he could not create or convey an easement in lot number five for the benefit of lot number seven for any purpose whatsoever. He was a tenant in common of lot number five and under the agreement of 1864 the use of the same was limited to the “respective lots aforesaid,”
i. e.,
the lots specified therein which did not include lot number seven.
If as owner of lot number seven he was inhibited from the use of lot number five in connection therewith, he could not confer upon another a use which he as owner did not possess and which had been granted to others under the agreement of 1864. While he might convey tiie one undivided one-tliird fee in lot number five, the right to use lot number five was then appurtenant in per
petuity to the certain lands specifically mentioned in the agreement of 1864, and the owners of other lands, cotenants with Ford in the ownership of lot number five, could not be prejudiced by any act of Ford in an attempt to create an easement for the benefit of lot number seven in the premises held in common.
(Palmer
v.
Palmer,
150 N. Y. 139, 149;
Crippen
v.
Morss,
49 N. Y. 63;
Marshall
v.
Trumbull,
28 Conn. 183.)
We are also permitted to consider the dealings and conduct of any of the parties claiming under the agreement of 1864, or mider the title from Ford to Kissam.
(Watson
v.
City of New York,
67 App. Div. 573; affd., 175 N. Y. 475.)
The deed executed by the referee in the partition action, conveying the equal undivided one-third part of lot number five, contained a reservation in identically the words contained in the deed from Mr. Ford to Kissam. Mr. Ford died prior to January 26th, 1897. Subsequently and on the 3rd day of May, 1897, lot number seven and the undivided one-third part of lot number five was conveyed by Ellison and others to Richard T. Wilson, who was the original plaintiff in this action and to whose rights the present parties plaintiffs have succeeded. In that deed, after describing lot number ■ seven and the one equal undivided one-third part of lot number five, followed the language:
“Subject also to the right by that certain deed .made by John R. Ford and wife, dated February 26th, 1879 [Ford to Kissam], reserving to the said John R. Ford,
his heirs and assigns of
using the Alley [Lot Number Five] in said deed referred to in the manner provided in the agreement recorded [agreement of 1864] it being the intention of the parties of the first part to convey to the party of the second part all the rights, privileges and immunities mentioned in said agreement [agreement of 1864] except as reserved aforesaid to the said John R. Ford.”
The agreement of 18(51 having been recorded was a muniment of title to the property. Mr. Wilson, the grantee, evidently had knowledge of the death of Mr. Ford when he accepted the deed which recognized the heirs of Mr. Ford as entitled to the use of lot number five, and he thereafter executed a conveyance to one Montgomery of the same premises, which deed contained practically the same language embodied in the deed from Ellison to Wilson; thereafter Mrs. Wilson received a deed of the premises from Montgomery containing a like clause, and held title under the same to the time of her death, May 3rd, 1908, when Mr. Wilson again became vested with the ownership of the property under her will. Acceptance of the deed by Mr. Wilson, and the subsequent conveyance of the property by him, expressly recognizing in the heirs
of
John B. Ford a right to use lot number five for the benefit of lot number three, and acceptance by Mrs. Wilson of the deed containing like recognition of the rights of the heirs of Mr. Ford was a declaration by Mr: Wilson and Mrs. Wilson that the heirs of John B. Ford had a then existing right to the use of lot number five, appurtenant to lot number three owned by them. Subsequently Mr. and Mrs. Wilson continued to recognize the interest of the heirs of John B. Ford in the use of lot number five, and it was not until the year 1908, eleven years subsequent to the death of Mr. Ford, that any protest was made by Mr. or Mrs. Wilson against the use of lot number five by the heirs of Ford, when a notice was served upon the defendant Fleischmann Bealty and Construction Company, on behalf of Mrs. Wilson, claiming that the use of lot number five was unauthorized. That notice was served subsequent to the erection of a business block on the premises, which was commenced in 1907, and after the property as stated had been used for business purposes.
When Mr. Wilson purchased the property in May, 1897, be was the owner of other property bounded on lot
number five. He had knowledge of the agreement of 1864 and of any rights of lot number three in lot number five, and is presumed to have made the necessary inquiry to ascertain the existence of any prior rights or to have been guilty of a degree of negligence fatal to a plea of ignorance.
(Cambridge Valley Bank
v.
Delano,
48 N. Y. 326;
Anderson
v.
Blood,
152 N. Y. 285, 293;
Kingsland
v.
Fuller,
157 N. Y. 507, 511.)
If, at the time of the acceptance and the subsequent execution of the conveyances referred to, Mr. and Mrs. Wilson did not intend to recognize an interest in the heirs of John E. Ford in lot number five appurtenant to lot number three, it was incumbent upon them respectively to have proper recitals in the deeds which they accepted and in the conveyances executed by them. Having-obtained and taken title, expressly subject to the rights of John E. Ford,
his heirs and assigns,
and for years thereafter recognizing such rights, it would be unjust to permit plaintiffs to assert that Mr. Ford during his lifetime by reason of the deed executed by him to Kissam, or Mr. Ford’s heirs, are estopped from claiming the right to a use of lot number five as appurtenant to lot number three.
(Freeman
v.
Auld,
44 N. Y. 50;
Bennett
v.
Bates,
94 N. Y. 354.) Bather should the plaintiffs, successors in title to Mr. and Mrs. Wilson, be concluded from denying the existence of such rights.
Considering the effect of the deeds and conveyances mentioned, and the acts and conduct of the parties in connection therewith, I find no difficulty in determining the intention of John E. Ford in his lifetime, and the intention of Bichard T. Wilson and Melissa Clementine Wilson during their respective lives, relating to the property in question and conclude that the several conveyances upon which reliance is placed by the respondent did not divest John E. Ford, his heirs and assigns of the use of lot number five as appurtenant to lot number three; that the deed executed by Mr. Ford to Kissam and others did
not create an easement in gross in Mr. Ford, but the use of said lot number five appurtenant to lot number three continued in Mr. Ford during his lifetime and upon his death became vested together with lot number three in his heirs, the defendants Ford herein; that there was no extinguishment by any act of Mr. Ford in his lifetime of his rights in lot number five under the agreement of 1864, which prevents his heirs at law, or their assigns, from asserting a right to the use of lot number five under-said agreement.
This conclusion renders a new trial necessary. We do not pass upon the remaining question decided by the referee, that the agreement of 1864 did not authorize the use of lot number five in connection with a business building. Covenants of the character contained in the agreement of 1864 have been refused enforcement in equity in certain cases Avhere by reason of a changed condition it would be inequitable to enforce such covenants.
(People ex rel. Frost
v.
N. Y. C. & H. R. R. R. Co.,
168 N. Y. 187;
McClure
v.
Leaycraft,
183 N. Y. 36.) Upon another trial of the action evidence bearing upon that question together with the legal effect to be attached to the release executed by Mrs. Wilson and the language of the agreement upon that subject will be presented for consideration of the court.
The judgment should be reversed and a new trial ordered, costs to abide the event.
Cullen, Ch. J., Willard Bartlett and Cuddebacjk, JJ., concur; Hiscouk and Chase, JJ., dissent; Miller, J., not sitting.
Judgment reversed, etc.