
    Anna M. Hoch et al., Resp’ts, v. The Manhattan R. Co. et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 13, 1891.)
    
    Basement—An abandonment acted upon becomes an ibbeyocable. license.
    In an action for trespass by defendants upon easements appurtenant to-the premises of plaintiffs, it appeared that the premises were conveyi d after the construction of defendants railroad to plaintiffs’ grantor, “in the condition in which the same now are,” and the court also found that defendants’ railroad was constructed, maintained and operated under some estate, license or authority derived from plaintiffs’ predecessor in the title. Held, that such finding amounted to an abandonment by the owner of the-easement; and that such abandonment having been acted upon by the defendants, it became as to them an irrevocable license.
    Appeal from judgment of special term awarding injunction and damages.
    
      B. Tolles, for app’lts; E. W. Tyler, for resp’ts.
   Van Brunt, P. J.

This action was begun in 1888, by John C. Hoch, to recover past damages and to obtain an injunction as to the property 133 South Fifth avenue, upon the ground of the trespass of the defendants upon the easements appurtenant thereto.

It appeared from the evidence in the case that Hoch purchased the premises in question in December, 1883, his grantors conveying’ the premises in the condition in which the same now are; and the court found that the defendants’ railroad was constructed, maintained and operated by virtue of some estate, license or authority derived from the plaintiff’s predecessor in title.

Past damages and injunction were also sought for the premises, No. 104 W. Third street, also purchased by the plaintiff in December, 1887. The plaintiff tore down an old building which was upon the premises, and in May, 1888, began the erection of a five story tenement house which was completed by the first of November, 1888. His grantor, Margaret D. Griswold, had commenced an action against the defendant to recover the permanent depreciation caused to these premises by the railroad; and her deed contained a reservation of any rights or action at law or in equity for damages caused by the railroad prior to or during her ownership of said premises.

Hoch having died during the progress of the action, the present plaintiffs individually and as executrices and trustees under the will of Hoch were by order substituted as plaintiffs and the action revived.

The court held as to both pieces of property that the plaintiffs were entitled to recover for past damage and also assessed a sum upon the payment of which the defendants should be entitled to a conveyance of the easements and to avoid the injunction, in default of which it was decided the plaintiffs were entitled to.

The first question presented is that there can be no recovery of past damages and an injunction as to 133 South Fifth avenue, the court having found that the erection of the defendants’ railroad was duly licensed and authorized by the then owner of said premises.

This point we think is well taken. It appears by the conveyance to Hoch that the said premises were conveyed in the condition in which they then were, with the railroad constructed and the easements appropriated. Such a deed conveys every easement appurtenant to the premises conveyed which the grantor owned or was entitled to recover: as easements always follow the principal estate. Hilliard on Eeal Property, 3d ed., vol. 2, p. 556; Huttemeier v. Albro, 18 N. Y., 48 ; Hills v. Miller, 3 Paige, 254. Consequently if nothing had been done by the original plaintiff’s predecessor to affect his claim to such easement it clearly passed with the conveyance to him as appurtenant to the estate conveyed. But the court having found that the defendant’s railroad was constructed, maintained and operated by virtue of some estate, license or authority derived from the original plaintiff’s predecessor in title, there appears to have been an abandonment of such easement by the owner of the title for the purposes of the construction of the defendants’ railroad.

And that the right to an easement may be lost and extinguished by abandonment is held in the case of Snell v. Levitt, 110 N. Y., 695 ; 18 N. Y. State Rep., 611, in which the principle is laid down that 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 intention to surrender the easement is sufficient to extingush it. And the further principle is laid down that 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, such action will operate to extinguish it.

' In the case at bar, it having been found that the defendants' railroad was constructed by virtue of a license from the original plaintiff’s predecessor in title so far as it affected these easements, it was clearly an abandoment by the owner of such easements which have been acted upon by the defendants; and was, therefore, a license which was irrevocable.

It is true that in the case of Wiseman v. Lucksinger, 84 N. Y., 38, it was held that a right of drainage through the lands of another is an easement which, if created by parol license, may be revoked at any time although a valuable consideration be paid therefor. But that decision was clearly based upon the principle that such an easement required for its enjoyment an interest in the lands which could not be conferred by parol license and could only be granted by deed or conveyance in writing. The defendants are not seeking by reason of this license to establish fray interest in lands. All that they claim is that so far as is necessary for the operation of their railroad there has been an abandonment of the easement appurtenant to the premises in question by the then owner thereof and that they have acted upon the same.

Under these circumstances it seems to be clear that the right of revocation does not exist.

It may be true that error was committed in admitting the evidence tending to interpret the language of the deed given of the premises in question, but a further reference to this point is not deemed necessary in view of the conclusion to which we have come upon the question already discussed.

The claim that the defendants’ railroad is located on the central strip of South Fifth avenue, and that no rights of the plaintiffs are interfered with, cannot be sustained in view of the recent decisions of the court of appeals as to the rights of abutting owners upon side streets. The claim that the reservation in the deed in respect to the West Third street property precluded the plaintiff from maintaining this action as to these premises cannot be sustained. Although the parties may have agreed that the permanent damages might be considered in the action brought by the previous owner, yet the court having refused to submit any such question to the jury and no such question having been submitted to them, it is difficult to see how anybody’s rights were precluded by a verdict in an action upon an issue which the record shows the court never submitted to the jury.

The parties stood after this trial precisely as though there had been no attempt to include permanent damages as part of the recovery in the action.

Various exceptions to the admissibility of evidence were taken which it is not necessary to discuss in view of the conclusion at which we have arrived in reference to the South Fifth avenue property. '

We think for the errors adverted to in respect, to that property the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Daniels and Brady, JJ., concur.  