ing in the rear thereof, thus obliterating the division line between the two properties, and erected on both of them a two-story automobile garage, covering the entire rear of No. 132 and a portion of the rear of No. 130, which building is used for the repair and store of automobiles. No. 130 North Warren street, which the defendants own, and upon a portion of which they have erected a portion of their garage building, was never parcel of either of the properties between which the alleyway is situate. When the defendants were about to commence the erection of their garage building, the complainant served written notice upon them that it would dispute their right to use the alleyway as an entrance to their garage.

The bill alleges, and the answer admits, that the garage building is so constructed that persons entering the same may, at pleasure, leave by way of either entrance, and not only that they may, but do, use both entrances for ingress, egress, and regress. The bill further alleges: That the defendants, their customers and patrons, are using the alleyway for the purpose of entering and leaving the garage with their automobile machines at all hours of the day and night; that the machines are propelled by means of power generated from gasoline, and when in operation they emit the odor of gasoline and volumes of smoke, which permeate the atmosphere and enter the doors and windows of the complainant's dwelling, the side of which looks out upon the alleyway through some 30 windows and doors; that the automobiles while passing through the alleyway constantly make a variety of loud, disturbing, and objectionable noises, interspersed with frequent explosions of gases, generated in the machines; and that the constant mechanical noises of machinery while in motion affect and disturb the peace, quiet, and comfort of the complainant's building and create a nuisance. The bill further alleges: That the defendants, by the joining of their two properties, have increased the traffic over the alleyway not only from the lands to which the alleyway is appurtenant, but also from the other lands, 130 North Warren street, whereby they have increased the servitude of the alley, which is not, never was, and cannot be made servient to the premises No. 130 North Warren street, or any part thereof; that the defendants not only have increased the servitude by extending the limits of the land, and by increasing the traffic, but by subjecting the alleyway to the burden of an easement in favor of automobiles when the right reserved was for carriages drawn by horses only. The defendants admit, practically, all of the allegations of the complainant's bill, and such denials as they make are quite immaterial for present purposes, because, coupled with their denials, they claim the right to do all of the things which the complainant alleges they are doing.

The alleyway in question was carved out by the reservation in the deed from Evans and wife and the executors of Reading to Pitcher, above mentioned, in 1858, and reads as follows: "The whole of the vacant lot between the brick house hereby conveyed, and the house on the said lot late of said Philip F. Howell, deceased, which said last mentioned house is now occupied by George G. Roney, is to be appropriated for a carriage way forever, for the benefit of the two properties between which it is situate, and running back to within thirty-five feet of the rear line, which said carriage way or alley is to be kept free at all times from all description of rubbish whatever, not anything to be thrown therein, but clear water, and each of the before mentioned properties, to wit, the house and lot of land hereby conveyed, and the house and lot of land where the said George F. Roney now resides, to have a private side alley, with gates affixed to them, and double gate is to be made to the entrance of the wagon or carriage alley, which said alterations or improvements are to be made as soon in the ensuing spring or summer as the parties to this deed may deem expedient. The work thereof to be done by the said William F. Pitcher, and each party to pay a proportion of keeping the same in repair." The complainant insists and contends that the defendants have no right to use the alleyway as a means of ingress, egress, and regress to their garage, with automobile machines, because: (1) The use which was to be made of the alleyway and which is the subject of the express reservation in the deed was for a carriage way only for the benefit of the two properties between which it is situate; (2) because the defendants are now using it in connection with their other property, which was never a part of either of the two properties between which the alleyway is located; (3) because, the use being restricted to a carriage way, the servitude only extends to carriages or vehicles drawn by horses, the term "carriage" as used by the parties to the conveyance not extending to automobiles; and (4) because the defendants are creating a nuisance by using the alleyway for an automobile passage.

The foregoing statement of the situation of the parties and the premises in question may be better understood by reference to the diagram hereto annexed. The properties of the complainant the Turkish & Russian Bath Company and of the defendants are thereon delineated and given their appropriate numbers on North Warren street. The alleyway in question is labeled with the word "alleyway," and, as will be seen, it lies between the property of the complainant on the north and the Trenton Turkish & Russian Bath Company on the south, with the defendants' rear portion of 132 North Warren street binding upon the alleyway for a short distance in the extreme rear thereof. A is the alley leading

from North Warren street to the garage on south side of the defendants' property No. 130 North Warren Street. B is the doorway into the garage from the alley A. C1 is that part of the defendants' property covered by the garage building which comprises the rear of No. 130, and C2 is that part of the defendants' property covered by the garage building which comprises the rear of No. 132, and which (C2), it will be remembered, is the rear portion of the Pitcher lot for the benefit of which and the complainant's lot the alleyway was originally carved out. D is the doorway into the alleyway from that part of the garage building which binds upon the alleyway.

the alleyway as appurtenant to their lot in the rear of No. 132 North Warren street for carriages drawn by horses. If, as urged, the defendants have no right to use the alleyway for vehicles which enter their garage through the alley on the south side of their property, No. 130 North Warren street, they are, by so using it, subjecting the servient tenement, namely, the alleyway, to an additional and unauthorized burden, which is illegal and should be restrained. That the law is with the complainant on this question seems to me to be perfectly well settled by a long line of decisions both in England and in this country. In Allan v. Gomme, 11 A. & E. 759, it was

C1 & C-Garage lot or lots.

Peter Backes, for complainant. Richard C. Chamberlain and Hugh H. Hamill, for defendant.

WALKER, V. C. (after stating the facts as above). The complainant's bill prays for an injunction restraining the defendants the Toman Bros. from using the alleyway between the lands of the complainant, No. 136 North 'Warren street, and the lands of the bath company, No. 132 North Warren street, as a passageway for automobiles entering or leav ing their garage building, through which, admittedly, they have the right of ingress, egress, and regress over the alleyway for horse-drawn vehicles in connection with their lot in the rear of the bath company's premises, and which was formerly a part of the same lot. The first and second grounds upon which the complainant rests its claim to an injunction are really one, and may be succinctly stated as follows: Because the defendants have a right of way only through

held that a conveyance to A. of certain premises reserving a right of way and passage over the locus in quo to a stable and loft in the same and a space or opening under the loft, to be used in common by both occupiers as tenants thereof had been accustomed to theretofore use them, that the reservation did not authorize B., who afterwards built a cottage on the site under the loft, to use the passage as a way to the cottage. Lawton v. Ward, 1 Ld. Raym. 75, holds that under a right of way to a particular place a man cannot justify going beyond that place. Colchester v. Roberts, M. & W. 769, involved a question of pleading, but Baron Parke observed, at page 773: "A license, therefore, to use a way to and from Black Acre, would not have included permission to go to or come from beyond." One of the older cases, and probably the leading one in England upon this question, is that of Howell v. King, 1 Mod. 190, which was in trespass for driving cattle over the plaintiff's ground. It was thus re

ported: "The case was: A. has a way over B.'s ground to Black Acre, and drives his beasts over B.'s ground to Black Acre and then to another place lying beyond Black Acre. And whether this was lawful or no was the question upon a demurrer. It was urged that, when his beasts were at Black Acre, he might drive them whither he would. Roll. 391, Nu. 40. 11 H. 4. 82. Brook, Tit. Chimin. On the other side, it was said that by this means the defendant might purchase a hundred or a thousand acres adjoining to Black Acre, to which he prescribes to have a way, by which means the plaintiff would lose the benefit of his land, and that a prescription presupposed a grant, and ought to be continued according to the intent of its original creation. The whole court is agreed to this. And judgment was given to the plaintiff." Davenport v. Lamson, 21 Pick. (Mass.) 72, was this: By the partition of a farm the right of passing and repassing across an eight-acre lot, belonging to the plaintiff, became appurtenant to a three-acre lot belonging to the defendant, who also owned a nine-acre lot which was beyond the three-acre lot, but was adjacent and not separated from it by any fence. The defendant, having loaded his cart with produce taken in part from each of his lots, passed with it from the three-acre lot over the plaintiff's close, and it was held that the defendant had no right to use the way as a way from the nine-acre lot, although in so doing he passed last from his three-acre lot onto the plaintiff's close, and that trespass would lie for such abuse of the defendant's right. In Evans v. Dana, 7 R. I. 306, it was held that an express grant of the right of access to and to take water from a well in close No. 1, as appurtenant to close No. 4, confers no such right upon close No. 3 adjoining, because not the same ownership as No. 4, as to authorize the owner to pass through his close, No. 4, to the well, and take water therefrom for the use of his close No. 3. The court observed: "In regard to the right claimed to exist as appurtenant to close No. 3, to take water from the plaintiff's well over and across No. 4, it is sufficient to say that an easement is a burden upon the servient, and a right only in the dominant estate, and, when created and declared by an express grant, cannot be extended beyond its plain language or clear intent. The easement appurtenant to close No. 4 confers therefore no rights upon close No. 3, and it makes no difference that they are now owned by the same party." Id., 311.

A right of way appurtenant to a lot cannot be used for the purposes and benefit of another lot to which no such right is attached, even though such other lot be adjoining and within the same inclosure with that to which the easement belongs. Farley v. Bryant, 32 Me. 474. See, also, Albert v. Thomas, 73 Md. 182, 20 Atl. 912; French v. Marstin, 32 N. H. 316; Webber v. Vogel, 159 Pa. 235, 28 Atl. 226; Greenmount Cemetery Co.'s Appeal (Pa.) 4 Atl. 529; Coleman's Appeal, 62 70 A.-39

Pa. 252; Shroder v. Brenneman, 13 Pa. 348; In re Private Road, 1 Ashm. (Pa.) 417; Greene v. Canny, 137 Mass. 64; Brightman v. Chapin, 15 R. I. 166, 1 Atl. 412; Shaver v. Edgell, 48 W. Va. 502, 37 S. E. 664; Springer v. McIntire, 9 W. Va. 196; Reise v. Enos, 76 Wis. 634, 45 N. W. 414, 8 L. R. A. 617; Stearns v. Mullen, 4 Gray (Mass.) 151. In the case of Shroder v. Brenneman, ubi supra, the Supreme Court of Pennsylvania remarked that the rule is stated in Howell v. King and runs through the subsequent cases, and that if the law were not so the owner of the close to which the right is appurtenant might purchase an indefinite number of adjoining acres and annex the right to them, by which the grantor of the way might be entirely deprived of the benefit of his land; a reason which applies with all its force to a private alley like that in respect to which the suit (Shroder v. Brenneman) was brought. The case of French v. Marstin, ubi supra, was this: M. owned what he called his "mountain pasture," consisting of the Bean, the Brown, and the Scheafe lots. He contended that he had the right of way to this pasture over the land of F., but there was no evidence that he had any such right to the Brown and Scheafe lots. It was held that, notwithstanding he might have the right to cross the land of F. to go to the Bean lot, and notwithstanding the three lots might all be embraced in one pasture, he could not extend the right to the other lots, and that in crossing the land of F. to go to the "mountain pasture" he would be a trespasser, and that F. would have the right to use sufficient force to prevent his crossing. In this case (French v. Marstin), the Supreme Court of New Hampshire remarked, at page 329 of 32 N. H.: That the doctrine of the books upon this question is undoubtedly sound; that if a right of way to one lot be extended at will, by the tenant, to another lot that may adjoin it, then it may be extended to a third, and so on to any limits that the tenant may choose. Greene v. Canny, ubi supra, is strongly analogous to the case at bar. In that case A. owned a lot abutting on a private way to which was annexed a right of way therein, also, another lot abutting on the way, and a third lot which adjoined the first-named lot. The two lots last named did not have annexed to them any right in the way. A. removed a fence between the second lot and the way, also a wall between the first lot and the third, and used the way for the benefit of the second and third lots. It was held that the owners of other lots on the way, and having rights therein, could join in a bill of equity against A., and that, on such bill, the court would compel A. to rebuild the fence, but would not compel him to restore the wall, although A. had no right to use the way passing to it from the third lot over the first.

Although the portion of the defendant's premises in the rear of the bath company's property has been severed from that remain

ing to the bath company, which remaining portion is the front of lot No. 132 North Warren street, all legitimate rights, by way of easement, which passed to the entirety of No. 132, by the grant from Evans' and Reading's executors, still reside in the rear or subdivided portion. In fact, this is not disputed by the complainant. Among the cases illustrative of this doctrine are the following: In re Private Road, 1 Ashm. 417; McMakin v. Magee, 13 Phila. 105.

From the above authorities, it clearly appears that the easement of the Toman Bros. in the alleyway in question is appurtenant only to their lot in the rear of No. 132 North Warren street, and that the way is servient only to its use as a carriage way to and from the lot, and that they cannot enter upon the lot through the alleyway for the purpose of going beyond the lot to their premises No. 130 North Warren street, nor can they, after passing from the latter premises to the rear of 132, pass out through the alleyway.

This brings us to the third ground upon which the complainant rests its bill, namely, that the servitude extends only to horsedrawn vehicles, and that the word "carriage way," as used by the parties to the conveyance, does not admit of an "automobile way." To this proposition I am unable to assent. The words "carriage way," and "wagon or carriage alley" are those in the deed designating the use to which the alleyway may be put. No particular kind of carriage or wagon is mentioned. Although automobiles had not been invented at the time the easement was created, yet the language of the grant is un-, restricted, and must be held to include any vehicle on wheels then or thereafter to be used. A "carriage" is defined to be "that which carries, especially on wheels; a vehicle." 5 Am. & Eng. Ency. of Law (2d Ed.) p. 157.

A case entirely in point, on principle, is that of Taylor v. Goodwin, 4 Q. B. Div. 228, in which it was held that a person riding a bicycle on a highway at such a place as to be dangerous to the passers-by might be convicted of furiously driving a carriage under St. 5 & 6 Wm. IV, c. 50, § 72. Lush, J., concurring with Mellor, J., made the following observations: "The mischief intended to be guarded against was the propulsion of any vehicle so as to endanger the lives or limbs of the passers-by. It is quite immaterial what the motive power may be. Although bicycles were unknown at the time when the act was passed, it was clear that the intention was to use words large enough to comprehend any kind of vehicles which might be propelled at such a speed as to be dangerous." As the English statute referred to comprehend any kind of vehicle under the denomination of carriage, so the words in the covenant in the deed in question are large enough to comprehend any kind of vehicle, and, to my mind, it is quite immaterial what the motive power may be. Mr. Huddy, in his Law

of Automobiles (page 3), speaking of the machines which he calls automobiles, or selfmoving carriages, says that the only definition he has been able to find of them is that in English's Law Dic. p. 78, which states that the term means "all motor traction vehicles capable of being propelled on ordinary roads. Specifically, horseless carriages."

Automobiles were held to come within the definition of "carriages" in Baker v. Fall River, 187 Mass. 53, 72 N. E. 336, and in Commonwealth v. Hawkins, 14 Pa. Dist. R. Baker v. Fall River was a tort action by one for damages resulting from an injury sustained while traveling in an automobile by a defect in a street in Fall Riv

592.

er.

The action was brought under a statute of Massachusetts which permitted recovery by a person traveling with horses, teams, and carriages. 1 Rev. Laws Mass. c. 51, p. 524, § 1. The defendant requested an instruction that the act did not apply to one driving an automobile, which was not a carriage," within the meaning of the statute, but was more like a "machine." The instruction was refused, and the trial judge said to the jury that he did not feel at liberty to instruct them that an automobile cannot be considered a carriage, and that, if the other elements of liability were A established, he was entitled to recover. recovery was had, and tile Supreme Court, on appeal remarked, at page 56 of 187 Mass., and page 337 of 72 N. E.: "lainly, an 'automobile' is a vehicle which can carry passengers or inanimate matter, and so is such a carriage as the decision in Richardson v. Danvers, 176 Mass. 413, 414 (57 N. E.. 688, 50 L. R. A. 127, 79 Am. St. Rep. 32 20), said that the Legislature had in view, in of that word in the statute. • automobile is a vehicle in common use for transporting both persons and merchandise ted upon public ways, and its use is regula by statute. * * * the We think that plaintiff was not precluded from a recovery because of the nature of the vehicle if which he was riding, and that the instruc tion to that effect was right." In Richardson v. Danvers, cited in Baker v. Fall River, although a bicycle was held not to be a carriage within the provisions of a certain Massachusetts statute, it was nevertheless observed: "We have no doubt that for many purposes a bicycle may be considered a vehicle or a carriage. The stat

*

the use The

ute in question was passed long before bicycles were invented, but, although, of course, it is not to be confined to the same kind of vehicles then in use, we are of opinion that it should be confined to vehicles ejusdem generis." Commonwealth v. Hawkins was this: Defendant was arrested, charged with operating an automobile in Pittsburgh without first having obtained a license provided for in an ordinance of March 30, 1905. Frazer, P. J., remarked, on page 593 of 14 Pa. Dist. R.: "While auto

In

mobiles are not specifically named in the act of assembly (P. L. 1868, p. 567, § 7), they are certainly carriages. Webster's definition of carriage is: "That which carries or conveys; a wheeled vehicle for persons.' In Snyder v. City of North Lawrence, 8 Kan. 82, the court said: 'Carriages are vehicles used for the conveyance of persons.' Conway v. Town of Jefferson, 46 N. H. 521, the Supreme Court of the state, in passing upon the right of a municipality to license vehicles, said: ""Carriages" mean whatever carries a load, whether on wheels or on runners.' Automobiles are wheeled vehicles used for the conveyance of persons. In view of these definitions, and of our general knowledge of such cars, they may undoubtedly be considered as carriages within the meaning of the act of 1868. That they were unknown when the act of 1868 was passed, is not material."

Being of opinion that automobiles are carriages within the meaning of the words in the grant of the way, I come now to the consideration of the fourth and last contention of the complainant, namely, that the defendants are creating a nuisance by using the alleyway for an automobile passage. It must be conceded that, even if automobiles are carriages within the meaning of the covenant under consideration, nevertheless the alleyway may not be used for their passage if in such use a nuisance is created. Upon this question of nuisance my judgment is also against the complainant's contention. Mr. Huddy lays it down that a garage does not constitute a public nuisance, and that an automobile station constructed on land abutting on a boulevard does not constitute a common-law nuisance, quoting Mr. Justice Woodward of the Appellate Division of the Supreme Court of New York, who, in Stein v. Lyon, 91 App. Div. 593, 87 N. Y. Supp. 125, declared that the business of a garage keeper appears to be perfectly lawful, observing, on page 596 of 91 App. Div., and page 127 of 87 N. Y. Supp.: "It was argued by the plaintiff * that the maintenance of an automobile station along this boulevard *

was a common

law nuisance; but the learned court has found to the contrary, and we have no doubt of the correctness of this conclusion. The business of the defendant appears to be perfectly lawful and legitimate." In treating of what are and what are not nuisances per se, it is stated, in 21 Am. & Eng. Ency. of Law (2d Ed.) p. 684, that, since there must be some place where every lawful business or erection may be lawfully located or carried on, the better rule would seem to be that a lawful business or erection is never a nuisance per se, but may become a nuisance by reason of extraneous circumstances, such as being located in an inappropriate place, or conducted or kept in an improper manner. This I understand to be, in effect, what was decided in Weil v. Ric

ord, 24 N. J. Eq. 169, in which it was held that the city of Newark could not absolutely prohibit the carrying on of a lawful business (salting and curing hides) not necessarily a nuisance, but which might be conducted without injury or danger to the public health, and without public inconvenience. Another case illustrative of the doctrine that a business lawful in itself is not a nuisance, but may be made a nuisance by the way in which it is carried on, considering the place where it is carried on, is Demarest v. Hardham, 34 N. J. Eq. 469.

These garages occupy, with relation to automobiles, the same place that stables do with regard to horses, and stables have not been held to be nuisances. Flint v. Russell, 5 Dill. (U. S.) 151; Fed. Cas. No. 4,876; St. James Church v. Arrington, 36 Ala. 546, 76 Am. Dec. 332; Stilwell v. Buffalo Riding Academy (N. Y. Sup. Ct. Spec. T.) 21 Abb. N. Cas. 472, 4 N. Y. Supp. 414. In Flint v. Russell, it was said that a livery stable in the residence portion of a city is not, as a matter of law, necessarily to be considered a nuisance to the improved property adjoining or near it. Said the court, at page 157 of 5 Dill. (Fed. Cas. No. 4,876), quoting Lord Chancellor Brougham: "Where the thing sought to be restrained is not unavoidably and in itself noxious, but only something which may, according to circumstances, prove so, the court will refuse to interfere." In St. James Church v. Arrington, a bill was filed to enjoin the erection of a stable at the side of a church building and in close proximity to it containing 16 stalls; the allegation being that it would of necessity create a nuisance so aggravated as to militate materially against the welfare and usefulness of the church. The chancellor sustained a demurrer to the bill for want of equity, on the ground that a stable is not per se a nuisance, and the decree was assigned for error. The Supreme Court, on appeal, affirmed the decree. In Stilwell v. Buffalo Riding Academy, the Supreme Court of New York held that, although whatever may be obnoxious or offensive to the senses, either of sight, hearing, or smell, or which will render the enjoyment of life or property unwholesome or uncomfortable, is a nuisancethe erection and use of a building for the stabling of horses, or even the business of a livery stable is not in and of itself a nuisance.

Of course, an automobile garage may be so conducted as to become a nuisance, and this brings us to an investigation of the facts relied upon as showing that the use of the alleyway for automobile traffic constitutes a nuisance. On that subject the bill alleges, as already remarked: That the defendants, their customers and patrons, are using the alleyway for the purpose of entering and leaving the garage with their respective automobile machines at all hours of the day and night; that the machines are propelled