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Statement of case.

AARON SNELL, Respondent, v. GEORGE LEVITT, Appellant.

While an easement acquired by grant cannot be lost by mere non-user for
any length of time, it may be extinguished by abandonment; and non-
user for a period of twenty years, under circumstances showing an inten-
tion to surrender the easement, is sufficient to extinguish it.
It seems a non-user, under such circumstances, for a less period than twenty
years, where the abandonment has been acted upon by the owner of the
servient tenement, so that it would work harm to him if the easement
were thereafter asserted, will operate to extinguish it.

In 1862, S. being the owner of land, upon which was a spring, conveyed by warranty deed a portion thereof to H., with a right to the grantee to lay pump logs to conduct water from the spring to the land conveyed. In 1863, H., who had not used the easement, entered into an agreement with S., by which, for the consideration of $75, she agreed to relinquish all her right, title and interest in the spring, S agreeing to allow her to draw water from pump logs running to his house from another spring. Soon after the execution of this instrument S tapped said pump logs and conducted the water therefrom to her premises. This use was continued for many years, and after that the occupants of the H. premises obtained water from still another spring. In October, 1883, plaintiff, who had succeeded to the title of attempted to use the easement; prior to that time no person holding under the grant to H had ever made any such attempt, and in December, 1883, plaintiff commenced this action against defendant who occupied the premises upon which was the spring, to recover damages for an alleged wrongful interference with the easement. It appeared that H. conveyed her premises by deed, containing the same description and purporting to grant the same easement as that in the deed from S. and the several mesne conveyances, including that under which plaintiff claims contained the same description of land and easement. The premises, upon which was the spring, were conveyed by S. without any reservation of the easement granted to H. and through various mesne conveyances, none of which contained any such reservation, defendant acquired title, the various grantees purchasing without notice of any claim of an existing easement under the deed to H. Held, that the facts showed, as matter of law, an abandonment and extinguishment of the easement.

It was claimed by plaintiff that, as the instrument releasing the easement was not recorded, it had no operation as against subsequent grantees of the premises of H. without notice. Held, that while this contention might be well founded if the extinguishment of the easement depended solely upon the instrument, it was only important here, as showing, with the other facts, an intention to abandon the easement; and this having

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Statement of case.

been shown and the easement having thus been extinguished, there was nothing for the deeds under which plaintiff holds or for the recording act to operate on.

Snell v. Levitt (39 Hun, 227) reversed.

(Argued June 6, 1888; decided October 26, 1888.)

APPEAL from judgment of the General Term of the Supreme Court in the third judical department, entered upon an order made January 26, 1886, which affirmed a judgment in favor of plaintiff entered upon a verdict. (Reported below, 39 Hun, 227.) The nature of the action and the material facts are stated in the opinion.

E. Countryman for appellant. There was an actual abandonment by Mrs. Higgins of the easement, accompanied by an intention on her part that it should be permanent, and a substitution of another easement in its place; which was followed by acts involving expenditure on the part of Snell on the faith thereof, such as laying pipe and diverting the water from the spring to other houses. (Washb. Easements [4th ed.] 707; Corning v. Gould, 16 Wend. 531; Crain v. Fox, 16 Barb. 184; Lattimer v. Livermore, 72 N. Y. 174; Cartwright v. Maplesden, 53 id. 622; Taylor v. Hampton, 4 McCord [S. C.] 96; Cowry v. Andrews, 123 Mass. 155; King v. Murphy, 140 id. 254; Jamaica, etc., Co. v. Chandler, 121 id. 3; Pope v. Devereux, 5 Gray, 409; Morse v. Copeland, 2 id. 302; Dyer v. Sanford, 9 Metc. 395; Curtis v. Noonan, 10. Allen, 406; Volger v. Geiss, 51 Md. 407; Glenn v. Dous, 35 id. 208, 217; Ballard v. Butler, 30 Me. 94, 98, 99; Steere v. Tiffany, 13 R. I. 568; Queen v. Chorley, 12 A. & E. [N. S.] Q. B. 515; Liggins v. Juge, 7 Bing. 682; Crossley v. Lightowler, L. R., 2 Ch. App. 478.) The question of abandonment is one as to the intention of the parties. If it is clear that they intended to substitute one casement for another, or to abandon the old easement, their acts in pursuance of such intention will operate to extinguish the easement. (Pope v. Devereux, 5 Gray, 409; Curtis v. Noonan, 10 Allen, 406, 409; Queen v. Chorley, 12 A. & E. [N. S.] 515, 519; Steere v. Tiffany, 13 R. I. 568, 570; King v. Murphy, 140 Mass. 254; Crossley

Statement of case.

v. Lightowler, L. R., 2 Ch. App. 482, 483; Vogler v. Geiss, 51 Md. 410, 411; Dyer v. Sanford, 9 Metc. 402; Liggins v. Juge, 7 Bing. 688; Morse v. Copeland, 2 Gray, 304, 305.) Any joint act, or act of one party with the consent of the other, which is inconsistent with the continuance of the easement, works an extinguishment thereof. (Cartwright v. Maplesden, 53 N. Y. 622; Lattimer v. Livermore, 72 id. 174, 182; Pope v. O'Hara, 48 id. 446, 447; 3 Kent's Com. 449.) It is not material, in the application of this rule, whether the easement was created by deed or by prescription. (Curtis v. Noonan, 10 Allen, 406; Morse v. Copeland, 2 Gray, 302; Dyer v. Sanford, 9 Metc. 395; Cartwright v. Maplesden, 53 N. Y. 622; Lattimer v. Livermore, 72 id. 174.) In any event the instrument, executed and delivered by Mrs. Higgins in July, 1863, was sufficient to form the basis of an adverse possession, which, continued under a claim of right for twenty years, ripened into a good title. (Sands v. Hughes, 53 N. Y. 287, 295, 296; Hilton v. Bender, 2 Hun, 1; Humbert v. Trinity Church, 24 Wend. 587; La Frambois v. Jackson, 8 Cow. 589; Reformed Church v. Schoolcraft, 65 N. Y. 134; Northrup v. Wright, 7 Hill, 476, 488; Townsend v. McDonald, 12 N. Y. 381, 392; Smyles v. Hastings, 22 id. 217; Wiggins v. McCleary, 49 id. 346; Nicholls v. Wentworth, 100 id. 455; Wood v. Warren, 82 id. 265, 270; McFarlon Case, 43 N. J. Law, 606, 630; Jordan v. Long, 22 S. C. 159, 167.) The undisputed facts, showing an actual abandonment of the easement by the grantors of the plaintiff, and an adverse use or enjoyment, under claim of right, which had been open, visible, notorious and uninterrupted for more than twenty years, were sufficient to charge the plaintiff with notice thereof, so that the legal presumption of a grant to the adverse claimant became conclusive. (Ward v. Warren, 82 N. Y. 265, 268; Nicholls v. Wentworth, 100 id.' 455; Hammond v. Zehner, 21 id. 118, 120; Clark v. Gilbert, 39 Conn. 94, 97; Perrin v. Garfield, 37 Vt. 310, 311; Humbert v. Rector, etc., 24 Wend. 587, 605, 606; White v. Chapin, 12 Allen, 516; Parker v. Foote, 19 Wend. 309; Corning v.

Statement of case.

Gould, 16 id. 531. The written instrument was sufficient, the defendant and his grantors being in exclusive possession under it as a specific title and claiming adversely, to avoid under the champerty act, all of the subsequent grants of the easement in the plaintiff's claim of title. (3 R. S. [7th. ed.] 2196, § 147; Nellis v. Munson, 13 State Rep. 825, 829; Sands v. Hughes, 53, N. Y. 287, 295, 296; Christie v. Gage,. 71 id. 189; Towle v. Remsen, 70 id. 304, 317; Thurman v. Cameron, 24 Wend. 87; Jackson v. Preston, 13 Johns. 407.) The court erred in striking out the evidence of declarations of Jonas Clock while he was the owner and in possession of the property, made after consulting counsel in reference to his right to the easement, to the effect that "he has supposed he had the right to lead the water from that spring, but found out that he had no right, and went home and gave it up." (Chadwick v. Fonner, 69 N. Y. 404, 407; 6 Hun, 544, 545; Abeel v; Van Gelder, 36 id. 513, 516; Pitts v. Wilder, 1 id. 525; Jackson v. Bord, 4 Johns. 230, 231, 234; McKellip v. McIlheny, 4 Watts, 317, 323; Strickler v. Todd, 10 Serg. & Rawle, 63, 74: Dorsey v. Dorsey, 3 Har. & John. 410, 426; Warshower v. Randall, 109 Mass. 586; King v. Murphy, 140 id. 254, 255, 256; Vrooman v. King, 36 id. 482; Spaulding v. Hallenbeck, 35 N. Y. 204, 207; 1 Greenl. on Ev. § 109.)

Nathaniel C. Moak for respondent. The grant of water rights contained in the deed of Snello Higgins was not personal to the grantee therein, but was for the benefit of the principal estate and its enjoyment, and became appurtenant thereto and would have subsequently passed with said estate, even in the absence of words of grant. (Nellis v. Munson, 13 N. Y. St. Rep. 825; Borst v. Empie, 5 N. Y. 33, 39; Washb. Eas. 25, 26, m. p.; Burr v. Mills, 21 Wend. 290, 294, 295; Wakely v. Davidson, 26 N. Y. 394; George v. Cox, 114 Mass. 382, 387; Manderbach v. Bethany, 109 Penn. St. 231, 234, 235.) The release, being unrecorded, is void as against a subsequent purchaser in good faith and for valuable consideration, whose conveyance is first recorded. (Nellis v. Munson, 13 N. Y.

Statement of case.

St. Rep. 825; 1 R. S. 702, § 38, m. p.; 1 id. 756, § 1; Westbrook v. Gleason, 89 N. Y. 641; Bacon v. Van Schoonhoven, 87 id. 446; Wood v. Chapin, 13 id 509; Decker v. Boice, 83 id. 215, 220–221; Clark v. Mackin, 95 id. 346, 350; Van Keuren v. Corkins, 66 id. 77; Bank v. Frank, 45 N. Y. Supr. Ct. 410-412; Riley v. Hoyt, 29 Hun, 114, 115; Adams v. Conover, 87 N. Y. 429.) It having been proved, and undisputed, that plaintiff paid value on his purchase, the burden of proof, or of showing that he had notice of defendant's alleged equities, or of his want of good faith, was shifted upon defendant. (Hart v. Potter, 4 Duer, 458, 461; Dalrymple v. Hillenbrand, 62 N. Y. 611; Cowing v. Altman, 71 id. 435; Goodman v. Harvey, 4 Ad. & El. 870; Byles on Bills, 118; Wormuth v. Somburger, 17 N. Y. Weekly Dig. 162; Collins v. Gilbert, 94 U. S. 754, 755; 1 Daniel's Neg. Inst. [3d ed.] § 819.) The easement granted by Snell to Higgins, and which became, before the cause of action herein arose, vested in plaintiff, still continued to exist in favor of said plaintiff, as the owner of said principal estate granted to Higgins, even though it had not been used and enjoyed by the predecessors in the title of plaintiff. (Wash. on Ease. [4th ed.] 717-720; White's Bank v. Nichols, 64 N. Y. 75; Doe v. Butler, 3 Wend. 149, 153; Smyles V. Hastings, 22 N. Y. 217, 224; 24 Barb. 44, 49; Arnold v. Stevens, 24 Pick. 106, 111; Jewett v. Jewett, 16 Barb. 157; Marvin v. Brewster, 55 N. Y. 538, 555; Angell on Watercourses, $252.) Churchill took title to the premises on which the spring was situate, subject to the easement granted to Higgins, and created in favor of plaintiff's premises, he having notice by the record of deed to Higgins, even though not specifically excepted in deed to himself. (Nellis v. Munson, 13 N. Y. St. R. 825; Marvin v. Brewster, 55 N. Y. 538, 556; Trustees v. Lynch, 70 id. 449, 450; At. Dock Co. v. Leavitt, 54 id. 35, 36, 42, 43; Winfield v. Henning, 21 N. J. Eq. 188; 2 Devlin on Deeds, § 1000; Cambridge Valley Bk. v. Delano, 48 N. Y. 327, 336; Wade's Law of Notice [2d ed.] §§ 310-313; Westervelt v. Wyckoff, 32 N. J. Eq. 188;

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