The Assistant Vice-Chancellor.
The bill charges that by the indenture of March 16th, 1839, executed between Wilder and Van Ranst, it was intended to be agreed that the party wall for which it provided should be used by-Van Ranst whenever he should build on his lot adjoining Wilder’s; and that no wall should be erected by him or his heirs or assigns, which should project in front of the front end of that party wall. It is impossible for me to derive any such legal intent from the indenture, as is claimed by the complainant. Indeed, the bill itself, as well as the counsel at the hearing, reposed the complainant’s equity, upon a distinct express agreement between Wilder and Van Ranst, that the buildings to be erected on their respective lots should be set three feet back from the line of Broadway; which agreement, when it was introduced in evidence, turned out to have been made by parol.
Several interesting points, growing out of this parol contract, were presented and ably investigated by the counsel on both sides ; but in the view which I have been constrained to take of the case, it will not be incumbent on me to examine more than two of them at much length.
[88] The evidence in support of the making of the agreement, I will not criticise or recapitulate; but will assume, for the purposes of the argument, that it is proved as it is stated in the bill.
In regard to the point that the defendant had no notice .of the agreement before he purchased, I consider that it is of no consequence, (otherwise than in disposing of the costs of the suit in a decree against him,) whether he had notice or not. He had not paid any part of the purchase money when the bill was filed, nor had any conveyance been delivered to him. He was wanting in both of the essential attributes of a bona fide purchaser, reposing himself in equity upon the absence of notice.
The defendant, although he bought with constructive notice, and persisted, after actual notice of the complainant’s reasonable expectations and supposed rights, in thrusting himself into this controversy, (I must say, so far as the testimony discloses, very needlessly, if not wantonly and ungenerously,) to the prejudice and discomfort of the complainant, is entitled in this tribunal to his rights as regulated by law; and it is not my province to judge him by his moral or social derelictions.
In ascertaining those rights, I propose to examine two questions ; first, is the contract relied upon, within the statute of frauds 1 and second, if it fall within the statute, is this a case in which equity may nevertheless carry it into execution ?
First. Does this agreement come within the provisions of the statute 1
The sixth section of the statute “ of fraudulent conveyances and contracts relative to lands,” enacts that no estate or interest in lands, except leases for a year or less, nor any trust or power, over or concerning lands, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing. And by the eighth section, every contract for the sale of any lands or any interest in lands, shall .be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (2 Rev. St. 134, 135, § 6, 8.)
It is claimed on the part of the complainant, that the urban servitude which he seeks to establish against the defendant’s lot, [89] is not an estate or interest in land, nor a trust or power over or concerning land. That he claims no right in the defendant’s land; his claim being not so much an easement, as a right in the nature of an easement, founded on Yan Ranst’s contract that he would use his land in a particular manner. And he defines his claim, as a privilege growing out of the restricted use of Yan Ranst’s land thus contracted for. It is difficult to perceive how this right, if it be neither an estate or interest in or over Yan Ranst’s land, can be said to have run with,-the land, into the hands of his heirs and their grantees; which is a proposition also urged by the complainant. But I need not speculate on the apparent inconsistency of the two positions.
It is impossible for the complainant to describe his claim, without plainly showing that it is an interest in the land owned by the defendant.
The definition of an easement, as given so long ago as the Termes de la Ley, includes this right as it was defined by one of the learned counsel. It is a privilege that one neighbor hath of another by charter or prescription without profit 5 and as described in a modern treatise, it is “ a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for ^ the advantage of the dominant owner.” (Gale and Whatley’s Law of Easements, 5.) The essential qualities of easements are,'these : 1st, they are incorporeal; and 2d, one imposed upon corporeal property; 3d, they confer no right to a participation in the profits arising from such property; 4th, they are imposed for the benefit of corporeal property; and 5th, there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. (Ibid. 5.)
The right or privilege set up in the bill, contains each of these essential qualities. It is, as there stated, an incorporeal hereditament, accessory to the complainant’s tenement, and attached to 1 the soil of Yan Ranst’s as the servient tenement; subjecting the latter for the benefit of the former ; and as such hereditament, it , would pass with the servient heritage to each successive propri- j etor, precisely as the complainant insisted in his points. (Pen[90] ruddock's case, 5 Rep. 101.) In Parker v. Foote, (19 Wend. 309, 317,318,) where the claim set up, was a right to continue the enjoyment of light and air through windows overlooking the adjoining land ; Judge Bronson, in delivering the opinion of the court, speaks of the claim as one by which the party acquired a beneficial interest in the land of his neighbor, and by which the latter forfeited such interest.
I need not dwell on the proposition .that incorporeal hereditaments, are inheritable^and of course assignable, rights ; issuing out of, or concerning, lan'ds. Ajjd it may with as much propriety be said that a rent charge is not an interest in lands, within the meaning of the statute of frauds, as to assert that an easement is not such an interest.
There has been a strong tendency in some of the modern decisions, to relieve hard cases arising under this branch of the law, from the force of the statute o’f frauds. Several of those cited by the complainant, exhibit this tendency, and especially Winter v. Brockwell, 8 East, 308, and Taylor v. Waters, 7 Taunt. 384; and such was Woodbury v. Parshley, 7 New Hampsh. R. 237. If these decisions are law, a parol license, executed or acted upon, is sufficient to pass an incorporeal hereditament ; thus not merely repealing the statute of frauds, but abolishing the rule of the common law that such an estate can only be conveyed by a deed.
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The Assistant Vice-Chancellor.
The bill charges that by the indenture of March 16th, 1839, executed between Wilder and Van Ranst, it was intended to be agreed that the party wall for which it provided should be used by-Van Ranst whenever he should build on his lot adjoining Wilder’s; and that no wall should be erected by him or his heirs or assigns, which should project in front of the front end of that party wall. It is impossible for me to derive any such legal intent from the indenture, as is claimed by the complainant. Indeed, the bill itself, as well as the counsel at the hearing, reposed the complainant’s equity, upon a distinct express agreement between Wilder and Van Ranst, that the buildings to be erected on their respective lots should be set three feet back from the line of Broadway; which agreement, when it was introduced in evidence, turned out to have been made by parol.
Several interesting points, growing out of this parol contract, were presented and ably investigated by the counsel on both sides ; but in the view which I have been constrained to take of the case, it will not be incumbent on me to examine more than two of them at much length.
[88] The evidence in support of the making of the agreement, I will not criticise or recapitulate; but will assume, for the purposes of the argument, that it is proved as it is stated in the bill.
In regard to the point that the defendant had no notice .of the agreement before he purchased, I consider that it is of no consequence, (otherwise than in disposing of the costs of the suit in a decree against him,) whether he had notice or not. He had not paid any part of the purchase money when the bill was filed, nor had any conveyance been delivered to him. He was wanting in both of the essential attributes of a bona fide purchaser, reposing himself in equity upon the absence of notice.
The defendant, although he bought with constructive notice, and persisted, after actual notice of the complainant’s reasonable expectations and supposed rights, in thrusting himself into this controversy, (I must say, so far as the testimony discloses, very needlessly, if not wantonly and ungenerously,) to the prejudice and discomfort of the complainant, is entitled in this tribunal to his rights as regulated by law; and it is not my province to judge him by his moral or social derelictions.
In ascertaining those rights, I propose to examine two questions ; first, is the contract relied upon, within the statute of frauds 1 and second, if it fall within the statute, is this a case in which equity may nevertheless carry it into execution ?
First. Does this agreement come within the provisions of the statute 1
The sixth section of the statute “ of fraudulent conveyances and contracts relative to lands,” enacts that no estate or interest in lands, except leases for a year or less, nor any trust or power, over or concerning lands, shall be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing. And by the eighth section, every contract for the sale of any lands or any interest in lands, shall .be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (2 Rev. St. 134, 135, § 6, 8.)
It is claimed on the part of the complainant, that the urban servitude which he seeks to establish against the defendant’s lot, [89] is not an estate or interest in land, nor a trust or power over or concerning land. That he claims no right in the defendant’s land; his claim being not so much an easement, as a right in the nature of an easement, founded on Yan Ranst’s contract that he would use his land in a particular manner. And he defines his claim, as a privilege growing out of the restricted use of Yan Ranst’s land thus contracted for. It is difficult to perceive how this right, if it be neither an estate or interest in or over Yan Ranst’s land, can be said to have run with,-the land, into the hands of his heirs and their grantees; which is a proposition also urged by the complainant. But I need not speculate on the apparent inconsistency of the two positions.
It is impossible for the complainant to describe his claim, without plainly showing that it is an interest in the land owned by the defendant.
The definition of an easement, as given so long ago as the Termes de la Ley, includes this right as it was defined by one of the learned counsel. It is a privilege that one neighbor hath of another by charter or prescription without profit 5 and as described in a modern treatise, it is “ a privilege without profit, which the owner of one neighboring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer or not to do something on his own land, for ^ the advantage of the dominant owner.” (Gale and Whatley’s Law of Easements, 5.) The essential qualities of easements are,'these : 1st, they are incorporeal; and 2d, one imposed upon corporeal property; 3d, they confer no right to a participation in the profits arising from such property; 4th, they are imposed for the benefit of corporeal property; and 5th, there must be two distinct tenements, the dominant, to which the right belongs, and the servient, upon which the obligation rests. (Ibid. 5.)
The right or privilege set up in the bill, contains each of these essential qualities. It is, as there stated, an incorporeal hereditament, accessory to the complainant’s tenement, and attached to 1 the soil of Yan Ranst’s as the servient tenement; subjecting the latter for the benefit of the former ; and as such hereditament, it , would pass with the servient heritage to each successive propri- j etor, precisely as the complainant insisted in his points. (Pen[90] ruddock's case, 5 Rep. 101.) In Parker v. Foote, (19 Wend. 309, 317,318,) where the claim set up, was a right to continue the enjoyment of light and air through windows overlooking the adjoining land ; Judge Bronson, in delivering the opinion of the court, speaks of the claim as one by which the party acquired a beneficial interest in the land of his neighbor, and by which the latter forfeited such interest.
I need not dwell on the proposition .that incorporeal hereditaments, are inheritable^and of course assignable, rights ; issuing out of, or concerning, lan'ds. Ajjd it may with as much propriety be said that a rent charge is not an interest in lands, within the meaning of the statute of frauds, as to assert that an easement is not such an interest.
There has been a strong tendency in some of the modern decisions, to relieve hard cases arising under this branch of the law, from the force of the statute o’f frauds. Several of those cited by the complainant, exhibit this tendency, and especially Winter v. Brockwell, 8 East, 308, and Taylor v. Waters, 7 Taunt. 384; and such was Woodbury v. Parshley, 7 New Hampsh. R. 237. If these decisions are law, a parol license, executed or acted upon, is sufficient to pass an incorporeal hereditament ; thus not merely repealing the statute of frauds, but abolishing the rule of the common law that such an estate can only be conveyed by a deed.
The case oi Winter v. Brockwell, is commented upon in many of those which followed it, and Taylor v. Waters has been overruled in England, and disregarded here. See Gale & What, on Easements, 19 to 45, for a statement and review of the late decisions in England.
The struggle in the hard cases referred to, has been to christen these privileges in another’s land, as licenses, rather than easements ; but the attempt has not succeeded.
I will refer to a few of the authorities on the question.
In Hewlins v. Shippam, 5 Barn. & Cress. 221, which was a well considered case, the defendant, for a valuable consideration, assented to the plaintiff’s making a drain in the defendant’s land. The plaintiff made the drain at considerable expense, and some years afterwards the defendant stopped it up. The court held [91] that the right claimed by the plaintiff to keep up this drain, was an incorporeal right, such as rents, rights of common, &e., and a freehold interest in it could not be created or passed otherwise than by deed. That although a parol license might be an excuse for a trespass, until such license was countermanded; a right and title to have such a passage for the water, a freehold interest, required a deed to create it; and there being no deed shown, the plaintiff could not support his action.
In Cocker v. Cooper, (l Cromp. M. & Rose. 418,) this case was fully recognized and approved. There, the plaintiff in 1815, had, with the defendant’s verbal consent, constructed a drain and tunnel in the latter’s land, and the water flowed in it till 1833, when the defendant stopped up the drain. The court held, that the plaintiff could not recover ; and said, “ With regard to the question of license, Hewlins v. Shipp am is decisive to show, that an easement like this cannot be conferred, unless by deed." (And see Bryan v. Whistler, 8 Barn. & Cress. 298; and Fentiman v. Smith, 4 East, 107.)
Gale & Whatley, in their treatise before cited, pages 42, 43, say, “ The result of the decided cases appears "to. be this ; a man may, in some cases, by parol license, relinquish a right which he has acquired” (by parol) “ in addition to the ordinary rights of property, and thus restore his own and his neighbor’s property to their original and natural condition ; but he cannot, by such means, impose any burthen upon land in derogation of such ordinary rights of property.”
In Mumford v. Whitney, (15 Wend. 380,) it was decided, that a parol agreement to permit a party to abut and erect a dam on lands of another, not for a temporary, but for a permanent purpose, is void, within the statute of frauds. The effort in support of the dam, was to make out that the agreement was a license, which having been executed, was not revocable. But the court held, that it was more than a license; it was the transfer of an interest in lands.
A license, is an authority to do a particular act or series of acts, upon another’s land, without possessing any estate therein. A claim for an easement, must be founded on prescription or a grant by deed, for it is a permanent interest in another’s land. [92] A license when executed, will prevent the owner of the land from maintaining an action of case or trespass, for- the acts done under it; but it is revocable at pleasure, and will not be a defence to any act done after it is revoked. Thus, it is applicable only to the temporary occupation of land, or dominion over it, and confers no right or interest in the land.
On the other hand, an agreement that one may enter and use land for a year, is more than a license ; it is an estate in the land. So of an agreement that one will not build on his own land, so as to obstruct his neighbor’s light and prospect from the windows in the adjoining house of the latter.
These distinctions are derived from the case just cited, from 3 Kent’s Comm. 452, and from Cook v. Stearns, a strong authority in 11 Mass. R. 533.
Chief Justice Savage' says, in 15 Wend. 393, “ To decide that a right to a permanent occupation of the plaintiff’s land, may be acquired by parol, and by calling the agreement a license, would be in effect, to repeal the statute.” The remark is equally applicable to an agreement set up by the owner of one tenement, against the owner of the one adjoining, that the latter shall permanently refrain from building upon his land, or using it in a particular manner, for the benefit of the tenement of the former.
The judgment of the court in Miller v. The Auburn and Syracuse R. R. Co., (6 Hill, 61,) sustains this' doctrine fully. And see the note to the second American edition of Smith’s Leading Cases, 27 Law Library, Phila., New Series, page 92.
My conclusion is, that the agreement proved, is invalid by the statute of frauds, and that the right claimed by the complainant, is not established and cannot be sustained as an existing legal right. Whether it be such a contract as equity will enforce notwithstanding the statute of frauds, remains to be considered.
Before proceeding with that inquiry, I will advert to another point, as illustrating the one just decided, viz: that the rights acquired by Wilder against Van Ranst, under the agreement, descended to and vested in the complainant as against the defendant, a purchaser from Van Ranst’s heirs or devisees. Now the eases on which the complainant relied, leave no middle [93] ground between a license, and an easement or hereditament. His right must fall within one class or the other. If within the latter, it is void by the statute. If within the class of licenses, what is the language of all the authorities, which have attempted to support similar interests, or which define a license? Uniformly, that a license is founded in personal confidence, and that it is not assignable or descendible. It was so held in Jackson, ex dem. Hull v. Babcock, (4 Johns. R. 418.) The same was adjudged in Bridges v. Purcell, (1 Dev. & Batt., N. C. Law Rep., 492,) where, in a suit for overflowing land by a mill dam, the defendant proved a parol consent by the plaintiff's ancestor, to the erection of the dam. The court said, that if the right were appurtenant to the land, or fastened to it, so as to descend with it, such right was an interest in the land, and within the statute of frauds. The same doctrine is laid down in Shep. Touch. 231, 3 Kent’s Comm. 452, 15 Wend. 392, and in many others. See also, 1 Smith’s Leading Cases, before cited, page 93, note.