#### George W. Coster, respondent, *vs.*John R. Peters, appellant.

1. The possession of land, over which a vault is built under a street, is not a mere easement, but an interest in the land, and cannot be rendered such an appurtenance of an adjoining piece of land as to pass by a deed of the latter,

2. The occupation of such land under the street, by virtue of a permit from the street commissioner of the city of New York, allowing the occupant to build such vault granted under an ordinance of the corporation of the city empowering such commissioner to give such permits, makes the occupant a mere tenant at will of the corporation of the city of New York, if the land belonged to them, or a trespasser, if it did not.

3. The plaintiff could not claim the ownership of such piece of land, where the deed under which he claimed bounded the land conveyed to him by the easterly “ litre ” of such street.

4. Where the vault upon such a piece of ground is separated from the adjoining premises by a sunken area, although the entrance to such vault is opposite to a door in a building upon such premises below the level of the street, by which a passage is made to the vault across such area, it is not even an appendage to such building, so as to be included in a covenant by the defendant to quit and Surrrender “ additions and improvements ” to such building to the plaintiff.

6. If the defendant obtained the permit in question, in consequence of being, and as the possessor of the adjoining land, the plaintiff, as his lessor of the latter, is not entitled to the benefit thereof, without indemnifying the defendant for . the expense of building such vault, and the fee paid by him for the permit. Nor unless he makes a proper case for such relief.

6. Rand over which public streets are laid-out and used, in the city of New York, belongs to the city corporation, in fee, *it seems. Per*Barboto, J.

7. The mere building and use of a vault under a street, by the lessee of the adjoining premises, as an appurtenance of a house erected by him, gives the owner of such premises no right to the possession of the vault, upon the termination of the lease; particularly where such vault is not a necessary or customary addition to buildings such as that erected by the lessee. *Per*Barboto, J.

8. A paper, styled a “permit,” given to an individual by the street commissioner in the city of New York, not witnessed, acknowledged or sealed, and not even purporting to have been executed by, or by authority of,-the corporation of the city, which purports to be a mere license or permission to the licensee to build a vault in a street, in the rear of certain specified premises, (even though issued to him in consequence of his being in possession of a building then being erected by him on such premises,) has none of the elements of a grant of an *easement. Per*Barboto, J.

*1939. Such a license or permit confers no right whatever upon the owner of the adjoining premises which entitles him to recover the possession of the vault so built by the licensee, in an action of ejectment.

10. If such vault is of any value, when used in connection with the house, the owner of the premises should not be permitted to oust the lessee from his possession, without payment of that value.

(Before Robertson, Ch. J., and Barbour and Garvin, JJ.)

Heard January 16, 1867;

decided October 7, 1867.

This is an action of ejectment to recover the possession of one half of a certain vault, under Mercer street, in front of the plaintiff’s land, with damages for detention.

In June, 1848, the executors of J. GL Coster demised to the defendant, for a term of about ten years, the premises "known as 539 and 541 Broadway, extending through to Mercer street. By the terms of the lease, the defendant-was to erect upon the Mercer street end of the premises, a brick building, fifty feet wide, and of a certain description, at his own cost, and, upon the expiration of his term, to surrender the premises, with all the additions and improvements thereto, to the lessors; and the latter therein covenanted to pay to the defendant upon such surrender, the then value of the additional building,-to be determined by arbitrators.

In erecting the building contemplated by the lease, the defendant left an open, arched passage way in the exterior wall of the cellar on Mercer street, and obtained from the street commissioner a written paper, styled a “Permit,” declaring that “ permission has been given to John R. Peters, Jr. to build vaults in front of premises on Mercer street, in the rear of numbers 539 and 541 Broadway,” and signed by the commissioner, and for which permit the defendant paid $150; and he, thereupon, constructed a vault, wholly under Mercer street, extending along the entire front of the new building, and twenty feet in width.

The side walls of that vault simply abutted upon, and were not built into the walls of the house. It was independent of the house in its construction, with the excep*194tion of the passage way, and except, also, that the floors were upon the same level, and continuous. After the house and vault were huilt, the latter was used by the defendant for making gas for the house.

Before the expiration of the lease, a partition of the demised premises was made between the owners, when lot number 539, extending from the west line of Broadway to the *eastern line*of Mercer street, was conveyed to the plaintiff in fee.

At the end of the demised term, arbitrators were appointed, who estimated and appraised the value of the building at $18,832; but they were directed by the plaintiff not to include the vault in their valuation, and did not. The. defendant surrendered the premises described in the lease, but refused to deliver possession of half of the vault. The vault cost about $1000, and the use of half of it was worth about $75 per year.

The defendant -set forth the facts in his answer, and prayed that the complaint be dismissed, or, in the alternative, that he have judgment for the value of half the vault.

At the close of the proofs, the court directed certain questions to be separately submitted in writing, to the jury, who answered thereto, substantially, *first,*that the vault was not a customary addition to buildings like that erected by the defendant, or necessary to its reasonable and proper enjoyment; *second,*that the use of half the vault, up to the time of the trial, was worth $200; and, *third,*that the value of half the vault, not including the value of the land, nor the right or license to build such vault, was nothing. The learned justice then directed a verdict for the possession, with $200 damages for the detention, and from the judgment thereupon entered, this appeal was taken.

*JEverett P. Wheeler,*for the appellant.

I. The theory of the complaint is that the Vault is an easement, appurtenant to the demised premises. The judgment, in this respect, follows the complaint. It is not for *195the recovery of'land, but of “so much of the vault constructed under that part of Mercer street and the sidewalk thereof, as is in front of the rear part of the premises .descrided as follows.” This judgment cannot be sustained.

1. Ejectment will not lie for interference with an easement. The action should be for damages, not for delivery of possession. *(Child*v. *Chappell,*9 *N. Y. Rep.*246.)

2. There was no evidence that the vault in question could be entered from the premises set off to the plaintiff. There was but one entrance to the vault from the cellar, whether from these premises or from those adjoining, which originally formed part of the same building, is not proven. The vault could be entered from the street. The judge should have submitted to the jury the question, whether the vault.was appurtenant to the building; this he refused; but charged them that it was appurtenant. There was no evidence to justify this instruction.

3. If the second question submitted to the jury substantially answered this request, then the special verdict disposed of it adversely to the plaintiff*. They found it was not “a construction necessary to the proper and reasonable enjoyment under the lease of the building' erected by the defendant on the plaintiff’s land,” nor “an ordinary and customary addition to buildings in the city of New York, similar to that erected by the defendant.” It cannot be. claimed, after these findings, that the vault was appurtenant.

■ 4. The question submitted was not a compliance with the request. “ Necessary to the proper and reasonable enjoyment,” is not a definition of “appurtenant,” It means “pertaining, incident;” and appurtenance, (isomething belonging to another thing as principal, and which passes as incident to it.” *(See Webster’s Dictionary.)*A garden may be appurtenant to a messuage, although “necessary to its enjoyment.”

II. The plaintiff showed no title to the land in the street on which the vault was built.

*1961. Two hundred feet from Broadway, carried him only to the easterly line of the street; his westerly boundary is “northerly along the easterly line of Mercer street;” this does not include any part of the land in the street. *(Bartow*v. *Draper,*5 *Duer,*130. *Jackson*v. *Hathaway,*15 *John.*447. *Child*v. *Starr,*4 *Hill,*369. *Jones*v. *Cowman,*2 *Sandf.*234.)

2. Even if the conveyance to the plaintiff included the street, it would pass no title to it; the fee of the streets -of New York belongs to the city. *(Bartow*v. *Draper,*5 *Duer,*130. *People*v. *Kerr,*37 *Barb.*357. 20 *How. Pr.*130. *S. C.*27 *N. Y. Rep.*188. 1 *Hoff. Treatise, 368.)*

3. The plaintiff, therefore, must make title to the easement he claims, from the city. The city ordinances prohibit the construction of any vault without a license from the municipal authorities; this license the defendant obtained, and there is no evidence or allegation that the-plaintiff ever received any assignment of this license, or can make title to it in any way. The exceptions were therefore well taken, and the complaint should have been dismissed.

IH. If the court should be of opinion that the vault in ' •question was *appurtenant*to the building erected by the defendant, and that the .plaintiff is entitled to recover its possession in this action, then the first instruction, (viz. that if the jury should find that the vault in question was appurtenant to and a necessary part of the building agreed to cover from the plaintiff" the reasonable value thereof,) should be and actually erected, the defendant was entitled to re-have been given, and the defendant has established his counter-claim.

1. It is “ a cause of action arising out of the contract set forth in the complaint as the foundation of the plaintiff’s claim.” He bases his action on the lease, and the counterclaim grows out of the covenant in the lease to pay the defendant for the building erected by him. It “is con*197nected with the subject of the action”—the vault. *(Code,*§ 150. *Blair*v. *Claxton,*18 N. *Y. Rep.*529. *Xenia Branch Bank*v. *Lee,*7 *Abb.*372.)

2. The lease was executed by the Costers individually; the addition of the words “ executors, &c.” is matter of description merely; they sign and seal as individuals. *(Townsend*v. *Hubbard,*4 *Hill,*351. *Taft*v. *Brewster,*9 *John.*334. *Dean*v. *Roesler,*1 *Hilt.*420.)

3. The plaintiff", by replying to the merits, waived the objection that the other lessor is not a party to the suit; also any objection that might be taken to setting up such a counter-claim in this action. It is a general rule of pleading that a pleader who joins issue on the merits waives all objections of form. *(Zabriskie*v. *Smith,*13 *N. Y. Rep.*322, 336.) No objection of the sort appears to have been taken on the trial. The evidence in support of the counterclaim was received without objection.

4. The award does not deprive the defendant of his right to be paid for the vault. The plaintiff instructed the arbitrator appointed by him not to include the vault in his estimate of the value of the building; all parties acted upon this instruction, as the written award shows; this is equivalent to an agreement so to modify the agreement to refer, as not to submit the question as to the vault; indeed, the appraisers agreed in writing to this. Such an agreement, when executed, is valid. (1 *Greenl. Ev.*§ 302, *n.*1. *Dearborn*v. *Cross,*7 *Cowen,*48.)

5. The only possible basis for the instruction given by the plaintiff was that the vault was not part of the building; on this instruction all parties acted. If part of the building, the defendant was clearly entitled to be paid for it under the lease; but the instruction which withdrew this from the arbitrators, deprived him óf this compensation. The plaintiff is estopped now to claim that the vault is part of the building, and under such claim to recover its possession. The 'fifth, sixth and seventh instructions asked *198for, were therefore improperly refused. *(Plumb*v. *Cattaraugus Co. Mutual,*18 *N. Y.*392.)

IY. The exception to the form of the third question submitted-to the jury was well taken. The value *“to the plaintiff*” of the use and occupation of the vault was not the test. That might be less or more. Eor the same reason the third instruction was improperly refused.

Y. The fourth instruction was improperly refused. The statute is express that the value of permanent improvments made by the defendant may be set off against the plaintiff’s claim for damages. (2 *R. S.*311, § 49. 3 *id.*598, § 42, *5th ed.)*

YI. The exception to the charge was well taken. The statute is express that “in estimating the plaintiff’s damages the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff.” (2 *R. S.*311, § 49. 3 *id.*598, § 42, *5th ed.)*

YII. The eighth instruction was improperly refused. There is no evidence of the exclusion of the plaintiff from the possession of the vault; the evidence was the other way. The verdict for $200 damages is contradictory^ and cannot be sustained; the jury found that the vault was of no value, but that the use of it for five years was worth $200. It is impossible that both these findings should' be correct, and the verdict must be set aside.

*Joseph B. Choate,*for the respondent.

I. The plaintiff", as owner of the land and building, in front of which the vault was constructed, was entitled to recover the possession of the vault, as appurtenant to his premises. The vault is, by its very nature and mode of construction, appurtenant to the building. It is so agreed in the pleadings, and was fully proved to be so by the evidence on both sides; it being of no value, and of no possible use, except in connection with the building, as it had always been used. As against all parties, except, perhaps, *199the corporation, the owner of the building is entitled to use and possess it. There is nothing in the objection, that it is not such real estate as is recoverable in an action in the nature of ejectment, for it is tangible property which is capable of being possessed and delivered to the plaintiff.

1. When the defendant, having entered under the lease applied for and obtained the permit for th e vault, and proceeded to construct it accordingly, his acts and doings were solely as tenant and.occupant of the premises. He had no right or title to build or use the vault as appurtenant to the buildings, except by virtue of the title of his landlords; nor would the law permit him while he held the land as tenant to acquire any adverse title to the vault as constructed. He was acting as the representative and for the benefit of the estate, and the improvement which he added to the premises went with the land to the landlord at the expiration of the term.

2. His express covenant to quit and surrender the premises, together with all “ additions and improvements ” thereto, embraced the vault as well as the rest of the premises.

3. Hor is it any thing to the purpose that the license to " construct the vault was applied for and obtained by the tenant in his own name, for both the letter and spirit of the ordinances, and the uniform usage and practice of the department which granted the. licenses, concurred in treating the licenses as granted to the premises, and the vault when built' as belonging to the house in front of which it was constructed.

H. The damages assessed by the jury for the withholding of the property are much below the most moderate estimate which, could be put upon the use and occupation of the vault for any purpose—being only $200—from the first day of May, 1858, to the ninth of March, 1863.

HI. The defendant is not entitled to any counter-claim, or set-off for any cause. Upon any evidence in the case he has no claim whatever against the plaintiff. The vault was no part of the building which, by the lease he covenanted *200to build, and the lessors covenanted to pay for. The description in the lease is fully satisfied and exhausted by the building erected, without the vault. That was an addition entirely outside of the covenants referred to, which the defendant, for his own pleasure and convenience, and at his own cost, saw fit to erect.

1. Not only do the terms of the lease clearly exclude the vault from the buildings to be paid for, but the facts proved show, and the jury have found, that it was not a usual or customary addition to similar buildings in the city, or necessary in any way to the reasonable use and enjoyment of the building provided for in the lease. The defendant, thinking it an economy in the use to which he intended to put the building, constructed the vault in order to put up therein private gas works with which to illuminate the building; and could suggest no other use to which it could be put but storage.

2. Like any other fixtures, or permanent improvements attached to the freehold by a tenant, the vault in question reverted to the landlord, without any obligation on his part to pay for the same.

IV. The section of the Eevised Statutes, upon which the defendant relied for a set-off, and which in the latter part of the charge the learned judge seems to have had in mind, has no application whatever to the case. Part 3, chap. 5, title 1, § 49, simply provides, that upon the trial of a proceeding upon suggestion of a claim for mesne profits after judgment in ejectment, “ the defendant shall have the same right to set off permanent improvements made on the premises to the plaintiff’s claim as is now allowed by law; and in estimating the plaintiff’s damages the value of the use by the defendant of any improvements made by him shall not be allowed to the plaintiff.” The revisers, in their original note to this section, say: “ The first part of the section intended to embrace the case in 4 *Cowen,*168. But as he thus would be remunerated only for the principal expended by him, he would still be liable to pay the interest *201on Ms own principal, that is for the use of his own improvements, if the latter part of the section were not added. The same rule of justice would apply to both; and no ground is perceived on which to justify the rule, that would give to a claimant who thinks proper to lie by and see another reaping the fruits of his industry, a compensation for his own indolence. The same principle above proposed now exists in the case of a widow claiming dower.”

In *Jackson*v. *Loomis,*(4 *Cowen,*168,) which was trespass for mesne profits, (a form of action abolished by section 44 of the above cited chapter,) the set-off intended was only for permanent improvements, made by the defendant after the plaintiff became entitled to the .possession of the premises and while the former held adversely. Nobody thought of allowing a defendant for the value of improvements, already made when he entered into adverse possession. The defendant’s argument reduced itself to this: “Although I had no claim for compensation when my term expired, and it was my duty to quit, yet by holding on adversely until the plaintiff, by lapse of time consumed in my defense of his suit, had acquired a claim of mesne profits, I can nullify that claim by a set-off.”

V. None of the many exceptions on the part of the defendant will be found to be well taken. The only errors committed by the learned judge were in allowing a set-off in any contingency whatever, and in excluding evidence offered by the plaintiff—but as those were an error in the defendant’s favor, it is now immaterial.

Of the several requests by the defendant to charge, those which were not immaterial, as covering ground really charged by the court, will be found to involve propositions at variance with the law, as we have contended for it, or with the facts which were not in dispute.

VI. As to the further special question left to the jury, it was wholly immaterial, as well upon the pleadings as upon the view which the jury took of the case by their general *202verdict, and their special findings on the first and second questions. Under the charge of the learned judge, there was no occasion to inquire into the value of the vault itself, if they should find,, as they did find, that the vault was neither customary nor necessary. The meaning of the jury in their answer to this fourth question is perfectly obvious, having in view the charge, inasmuch as having answered the first and second questions in the negative, they found no value in the vault itself, for which the -defendant was to have a set-off or recovery in the action. Strictly, the answer is true, and supported by the evidence. But in any view of the case, upon the issues and evidence, both the question and answer are immaterial, and furnish no ground for disturbing the judgment below.

By the Court, Robertson, Ch. J.

The space under the highway known as Mercer street, wherein the vault in question was built, was in the possession of the defendant as part of the soil or land, as much as if it had been a room in a building. It was not a mere easement. The ownership of soil extends downwards and upwards, from the surface as much as it does over the mere superficial area, and may be subdivided horizontally as well as perpendicularly. Being, therefore, land itself, carrying with it all the fruits of dominion, and not a mere right to the use temporarily or permanently of it without occupation, for the benefit of another piece of land, it could not be such an appurtenance as to pass by the mere conveyance of the latter.

The defendants’ title to the occupation as claimed by him, rested on permission granted by a street commissioner of the city of New York, to *Mm personally*to build such vault in front of premises on Mercer street, subject to the provisions of certain ordinances of the common council therein referred to, and set out in the case. By the first section of those ordinances, the commissioner is empowered to give permission to build vaults in the streets. This was entirely a *203personal license, and probably constituted the defendant a mere tenant at will of the city corporation, if they owned the fee of the street, or a trespasser, if it belonged to any one else. There is no evidence that it belonged to the plaintiff. Indeed, the conveyance to him, under which he claims, excludes the street by bounding the land conveyed by its easterly “line.”

Nor was the vault in any way annexed to the plaintiff’s buildings. They were, in fact, separated by that part of the street, which constitutes what is called “ an area.” It is' true, the entrance into the vault was opposite a door in the building, so as to make a direct passage to it, but it might as well have been a passage to a vault opposite adjoining buildings. There is nothing to make such vault an appendage to the house in front of which it was^ except the fact of so fronting it. The jury even found that such vault was neither *“necessary to the proper and reasonable enjoyment*under the lease of the building erected by the defendant” nor “ an ordinary and customary addition to buildings in the city of New York, similar to” such buildings. So that even if the defendant’s covenant to quit arid surrender “ all additions and improvements ” to such premises, could be extended beyond the building which he covenanted to erect, or other structures erected *on*the' demised premises, it would not include such vault so as to enable the plaintiff* to enforce such covenant in this action. The arbitrators were, for the same reason, right in excluding such vault from the buildings valued by them under the covenant in the lease.

I do not think the practice of the corporation in confining their permits to build vaults to the owner or occupant of, or other person representing the premises back of it, as proposed to be proved on the trial, could make it in law an appurtenance to the building, whose tenants used it. If the defendant obtained an advantage by virtue of his position as lessee, which would benefit the enjoyment of the *204land, and if retained by Mm after the lease ended, might-prejudice such use, he may possibly be bound in equity to transfer it. In such case the plaintiff claiming equity would be bound to do by contributing a proportionate part to the expense of obtaining such benefit, including the fee for the license and the cost of building the vault, because he cannot claim it as being affixed to the soil of his land or an appurtenance thereof. No offer to do so is made in this action, and it is not framed for such relief.

For these reasons the judgment and order denying a new trial should be reversed, with costs to abide the event.

Garvin, J. concurred.

Barbour, J.

To entitle the plaintiff to succeed in this action, it was, of course, necessary,.that he should establish his ownership or right of possession, upon the trial. The question whether the defendant has but an imperfect title or right, or even none at all, is, therefore,quite unimportant so far as concerns this appeal.

The evidence does not show that the plaintiff is the owner of the land upon which the vault is constructed. It, probably, belongs to the city of New York, in fee. *(See ex parte Mayor, &c. Matter of Mercer street,*4 *Cowen,*542. *Matter of 17th street,*1 *Wend.*262. *Bartow*v. *Draper,*5 *Duer,*130. *People*v. *Kerr,*27 *N. Y. Rep.*188. 1 *Hoffman’s Tr.*368.) It is sufficient to say here, however, that although' the complaint alleges that the lessors,'at the time of the execution of the lease, were seised of the two lots “ bounded westerly by Mercer street,” thus averring by implication, perhaps, that the premises extended to the center of that street, yet the deed in partition to the plaintiff himself/ conveying to him the lot No. 539, makes the *westerly line of*Mercer street the western boundary of the lot. The ownership of the plaintiff, therefore, is limited by the line *205of Mercer street, and cannot be extended to the *filwn ad medium*via, by implication or otherwise. *(Jackson*v. *Hathaway,*15 *John.*447. *Jones*v. *Cowman, 2 Sandf.*234. *Bartow*v. *Draper,*5 *Duer,*130. *Child*v. *Starr, 4 Hill,*369. 3 *Kent’s Com.*434.) Even if we may assume, therefore, that the seisin of the executors covered the land on which the vault was built, and that the defendant was bound by his covenant in the lease to return it to them at the end of his term, it is quite clear that the plaintiff cannot sustain this action as the owner, in severalty, of such land.

But the plaintiff claims, upon this argument, that irrespective of the question as to the ownership of the land, he is entitled to recover the possession of one half of the vault for the reason that it was constructed and used by the defendant, during his tenancy, as an appurtenance of the building erected by him under the lease, and because, also, the license granted to the defendant by the street commissioner was, in effect, an easement running with, and appertaining to, the adjoining premises belonging to the plaintiff, and for his benefit as such owner.

The mere fact that the vault was built and used as an appurtenance of the house erected by the defendant, gives the plaintiff no right to the possession of such vault upon the termination of the lease. A tenant under a lease, who is also the owner or possessor under a license from a third party, of a building adjoining the premises leased by him, and which building he connects" and uses during his term with the premises so leased, as an addition to the latter, does not thereby subject himself to be divested of his ownership or possession at the expiration of his lease. Rights of possession and ownership are not thus acquired or lost. Such a case was never heard of; although formerly, as now, men have taken leases of adjacent buildings from different landlords, and for convenience or business purposes, have connected them by doorways, and used the one as an appurtenance of the other, or have hired a *206house of one man, and a garden, as appurtenant to it, from another.

The written paper, styled a “permit,” which was given to the defendant by the street commissioner has none of the elements necessary-to constitute a grant of an easement. It has no witness, acknowledgment or seal, and does not even purport to have been executed by, or by authority of, the corporation of the city. It is amere license, or, as it calls itself, “a permission,” given to the defendant personally, to build a vault in Mercer street, in the rear of Nos. 539 and 541 Broadway. Possibly, and indeed probably, it was issued to him, because he was in possession of the building then being erected on lots 539 and 541, except for such possession, he could not have obtained the license. But that does not concern the plaintiff.' If the city was the owner, in fee, of the land covered by the street, there can be no good reason why it might not use or permit others to use, any portion of its land beneath the surface of the street, to the same extent and in like manner as an individual may use or dispose of his own property. The corporation, certainly, was under no obligation to give its license at all; but had a perfect right to grant such permission to any person, whether the= owner of a contiguous building or not, and for any purpose not inconsistent with its duty to the public, or with the rights of the holders of adjacent lands. The license or “permit” of the street commissioner, therefore; conferred no right whatever upon the plaintiff which entitles him, in this action, to recover the possession of the premises claimed by him.

Nor, if we are at liberty here to consider the claim of the plaintiff, as resting upon any principles of equity, does he occupy a' better position. If the vault in question prevents his obtaining water or gas from the street mains, or if its continuance there, in the possession of the defendant, obstructs the use of his own premises, he may, in a proper action, have the nuisance abated. But no such fact appears in this case, and we may, therefore assume that he has sus*207tained no injury. The real and ultimate question in the case is, whether the plaintiff ought to recover from the defendant the possession of the premises without paying any consideration therefor. As'the jury have found that the vault was not a necessary or customary addition to buildings of the character erected by him, it may be assumed that he was at liberty to refuse to pay for and take it, or at his option, under the offer of the defendant to have it included in the arbitration; where its real value to him, whether much or little, as an appurtenance to the building, could have been estimated and appraised.’ That it was of some value when used in connection with the house is apparent from the finding of the jury in that regard; and I see no equitable reason why the plaintiff should be permitted to oust the defendant of his possession without payment of that value.

The judgment should be reversed, with costs, and a new trial directed.