Bloom v. Koch.

PITNEY, V. C.

The complainant, Bloom, is the owner of a house and lot No. 70 Matlock street, in the city of Paterson, facing on the south side of that street, the lot being twenty-five feet front and one hundred feet deep. The defendant, Koch, is the owner of the lots adjoining on each side-Nos. 68 and 72-of the same width and depth severally. The complainant files his bill to abate and enjoin the continuance of an erection placed by Koch on his land, which complainant claims is a nuisance and wrongful injury to his land. The nuisance consists of a tight wooden fence or boarding, about twenty-five feet high and sixteen feet wide, erected by Koch in July, 1900, on lot No. 72, close to the line between his lot and complainant's lot, which has the effect of nearly or quite blinding six windows in three stories of complainant's house.

The right involved is that of light and air.

The dwelling on complainant's lot is built on the whole width thereof, bounding on the street, is forty-two feet in depth, and has three stories and an attic. The defendant's lot, No. 72, has upon it no building for a distance of forty-five feet from the street, that space being used as a lawn, and in the rear of that lawn is a dwelling three stories high, but not extending the whole width of the lot, leaving a vacant space of about five feet on the west side thereof next to complainant's lot.

On the east side of complainant's house, and opening on this lawn, are eight windows, a pair close together on each of the floors. These windows are situated in an inset or rectangular notch, constructed in complainant's house, eighteen inches in depth and twelve feet in length, on the side line of the lot.

The result of the boarding, which is set close to the westerly side of defendant's lot and covers the whole width of the notch and two feet on each side, is to leave only a space of between eighteen and twenty inches between the side of the house at that point and the boarding. The effect of the boarding is, plainly to the eye, and according to the evidence, to seriously obstruct the influx of the light into the rooms through the windows in question. They have no other windows, and can only

Bloom v. Koch.

be used for the greater part of the day by the aid of artificial light. This lack of light is, of course, felt most seriously on the lower floors.

MATLOCK ST.

Νο. 68.

KITCHEN.

HALL.

BED-ROOM

BED-ROOM

100

PAVED WALK.

DWELLING

KITCHEN

GH BOARD FENCE

HIG

100

Vacant

No. 72.

25

Bloom v. Koch.

The complainant founds his right upon a deed of conveyance of the house and lot No. 70, made to him by the defendant while the defendant was the owner of lot No. 72. That conveyance is dated November 27th, 1899. At that time there was no boarding where the defendant subsequently erected it.

The theory of the complainant is that the influx of light and air over the vacant yard or lawn in front of defendant's house was an apparent and continuous easement, and thereby an appurtenant to complainant's house, and that it passed under the language found in the deed:

"together with all and singular the houses, buildings, trees, ways, waters, profits, privileges and advantages, with the apputenances to the same belonging or in anywise appertaining."

The circumstances more in detail are as follows: The defendant is a builder by trade, and has been in the habit of buying building lots in the city of Paterson, erecting houses thereon and selling them. In 1881 he became the owner of lots Nos. 68 and 70, adjoining each other, on the south side of Matlock street. Immediately afterwards he erected on the front part of lot No. 70 a three-story-and-attic tenement house, twenty-five feet wide and forty-two feet deep, with a narrow hall running lengthwise through the middle of it on each of the three floors, with three narrow rooms on each floor on each side. The house had gable roofs pitching toward the street and rear respectively, the gables facing the adjoining lots; and the attic was divided somewhat similarly to the room below, and lighted by windows in the gables, opening on the adjoining lots. On the three main stories the front rooms were sitting-rooms, the middle rooms were kitchens, and the rear rooms were bedrooms. The front and rear rooms had their light from the front and rear of the house. Opposite the kitchen on the east side, next to lot No. 72, the notch of eighteen inches was inserted, and in that were two windows for each floor, which are the windows here in question.

The kitchens on the other side, next to lot No. 68, were lighted by windows in the same way, opening on an alley on lot No. 68, but without any notch.

Bloom v. Koch.

(In point of fact the building on lot No. 70, just mentioned, encroached a few inches on the line of lot No. 68, a fact quite immaterial except that it explains some of the evidence.)

Then, on lot No. 68, the defendant built three dwellings, covering the whole of the lot, except an alleyway seven feet wide next to lot No. 70, extending from the street about eighty feet to a dwelling which covered nearly the whole of the rear of the lot. This alleyway provided access for light and air to the three buildings on lot No. 68, and also to the kitchens on the west side of the house on lot No. 70, and also a passageway from the rear of lot No. 70 to the street.

The notch on the east side of the house on lot No. 70, forming one side of the kitchens, was obviously made with a view of being used for light and air in case a building should be erected entirely up to the line on lot No. 72, then vacant.

Subsequently, in 1888, the defendant obtained a conveyance to himself of the title of lot No. 72, and then proceeded to build a house on the rear of that lot, the front of which was five feet farther from the street than the rear of the house on lot No. 70. That house was adapted for three families, and did not cover the whole width of the lot, but left a passageway between it and the line of lot No. 70, besides the vacant space or lawn in front. (See plate.)

Affairs were in that situation when the defendant made the conveyance in question to the complainant of lot No. 70. In that conveyance was inserted a special provision for the use by the owner of lot No. 70 of a passage between the rear of lot No. 70 and the street over the alleyway which was located on lot No. 68, on the west side of lot No. 70; also for the joint use by the owners of both lots of a sewer laid through the same, and an agreement to share the expense of its maintenance; but there is no mention of any right of influx of light and air to any part of the house, nor was there any reservation of the right to obstruct the same.

The complainant swears that at the time of the signing of the contract for the purchase of lot No. 70 and in arranging for the special right of the use of the alley on the west side for a passageway, he inquired of the defendant as to how he would

Bloom v. Koch.

get his light on the other side, and that the defendant said to him: "Why, you see that my house on lot No. 72 is set way back, leaving an open space, and that is all you want," or words to that effect. But this is denied by the defendant, and I shall consider the case as if nothing had been said upon that subject at or before the time the conveyance was made.

It is quite manifest that the right to obtain light and air from the front yard of lot No. 72 for the four kitchens on the east side of lot No. 70 is a decided and important addition to the value of that lot, and the deprivation of that right will be a serious injury to it and materially reduce its renting value. This is shown by the evidence.

Several objections are made to granting complainant relief. First. The defendant justifies the erection of the boarding, on the ground that the complainant permitted his tenants to throw kitchen refuse, bones, empty cans, pieces of paper and the like from the windows onto his lawn, and some evidence was given in support of that allegation. Evidence was given denying it. The defendant alleged that he was obliged to keep a barrel for kitchen refuse placed immediately under these windows. The proof was that he did keep a barrel near the front fence, in which he put the grass cuttings from his lawn and some refuse matters which he found there in clearing it up, but the occupants of the kitchens all denied emphatically that they threw any refuse there, and at most the amount thrown was very small. But be that as it may, and granting that complainant's tenants did trespass on his land to a serious extent in that respect, I am of the opinion that it furnishes no excuse in law or equity for such an infringement of complainant's rights as is shown, if those rights exist. Granting, for argument's sake, that the defendant was justified in law and equity in erecting a physical barrier at the place in question to prevent the recurrence of trespasses on his land, still there was no necessity, nor was it reasonable, to construct that barrier of close boards which would obstruct the light. One much cheaper and quite as efficient would have been an ordinary wire screen stretched between the two high posts erected to support the boards.