
    Elizur V. Foote, Resp’t, v. The Metropolitan Elevated Railroad Company et al., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed November 26, 1895.)
    
    1. Basements—Abandonment—Elevated railway.
    The right of a land owner in an easement in an adjacent city street may be destroyed by his abandonment of it, and the question whether there has been an abandonment, is one of intention depending upon the facts of the particular case.
    2. Same.
    To work an extinguishment at law, the acts of the party, entitled to claim the servitude or the easement, must be accompanied by the intention to extinguish, and be followed by action upon it on the part of the party claiming adversely. It must be a joint intent of all the parties interested to get rid of the easement.
    3. Same.
    Such intention is not to he inferred from the fact of the owner’s bringing an action at law against the elevated railway to recover temporary accrued damages for the unlawful invasion of his rights, followed by an agreement with a proposed grantee of his abutting property, whereby all claims, arisen or to accrue by reason of sucli elevated road, are reserved. Nor will a declaration of such intention by the original owner upon settlement of such action, made subsequent to his transfer of such abutting premises and their conveyance to a third person by his grantee, retroact to the time of the commencement of his action and so complete the act of ex-tinguishment as of that date.
    4. Same—Subsequent grantee.
    The pendency of such action and the existence of such an agreement will not affect a subsequent grant of the abutting property to a third party by the original owner’s grantee before any lawful acquisition of the easements by the railroad company. Such easements are appurtenant to the abutting property, incapable of being separated therefrom and pass upon a sale thereof to the purchaser with the right to any invasion thereof. The purchaser, in such case, is invested solely with the right of asking for an injunction to restrain the operation of the road and to reo .ver compensation for the easements. If the company thereafter makes a settlement with, and payment to, the original owner for the easements, it does so at its peril.
    Appeal from judgment of the general term of the supreme court in the first judicial department, entered upon an order, which affirmed a final judgment in favor of plaintiff entered upon a report of referees pursuant to an interlocutory judgment of special term which, among other provisions, directed a reference of the question of mesne damages.
    This action was brought to restrain the operation and maintenance of defendant’s elevated railroad in front of plaintiff’s premises, and to recover the damages caused thereby.
    
      Brainard dalles, for app’lts; Leo G. Dessar, for resp’t.
    
      
      Affirming 64 St. Rep. 872.
    
   Gray, J.

The plaintiff, owning property abutting on West. 53d street, in the city of New York, recovered an interlocutory judgment again t the defendants; which enjoined them from maintaining and operating their elevated railway in front of his premises, unless they acquired title to the street easements by condemnation proceedings. In proceedings following the decree, the mesne and fee damages were ascertained, and, upon this appeal from the interlocutory and final judgments in the action, the defendants make the point that there had been an abandonment and an extinguishment of the easements in the street, upon which plaintiff’s property abutted, before the latter purchased the same.. This abandonment of easements appurtenant to the land they claim to have been effected, as the result of certain agreements entered into between prior owners of the land and of a settlement made of an action at law brought against the defendants by one of these owners. This is an important point; for if it is well founded in the facts a complete defense is made out. As they base this claim to an extinguishment of the easements upon an intention to abandon them, as evidenced by some antecedent transactions, which was so effectuated, though at a time subsequent to tljie plaintiff’s purchase, as to complete the act of extinguishment as of the earlier date, we must consider the facts somewhat carefully ; in order to see if they establish all thai is claimed for them and justify the legal conclusion contended for.

The rule being that the abandonment of such an easement may be established by the evidence of acts clearly indicating an in tentian to abandon the right, is this a case for the application of the rule? In White v. Man. R. Co., 139 N. Y. 19; 54 St. Rep. 409, upon which the defendants rely, the question was as to the effect of an unconditioned consent to the building of the elevated railroad, given by owners of land bounded on the street, and upon which the defendants had acted, by proceeding to construct their road, and we held that it must be regarded as an abandonment pro tanto of the easements in the street. The decision in that case, as in the case of Snell v. Levitt, 110 N. Y. 595 ; 18 St. Rep. 611, was in accord with a settled doctrine of the law that the land owner’s right in an easement may be destroyed by his abandonment of it and that whether there has been an abandonment is a question of intention depending upon the facts of the particular case. See 2 Washburn on Real Property, *83; Washburn on Easements, *661, and Corning v. Gould, 16 Wend. 531.

The peculiar features in the White and Snell cases, which have been referred to, were, in the one, an express authorization to build the elevated railroad and, in the other, an express relinquishment of an easement to conduct water; upon both of which agreements the parties favorably affected thereby had acted. We will not find in the facts of this case much resemblance to the features of either of the other cases, Lathrop, one of the predecessors in title of the plaintiff, commenced an action at law against the defendants to recover from them $10,000 damages for the loss of rents and the injury to the value of his premises, occasioned by their trespass upon his property rights in the street. Subsequently, having contracted to sell the property affected to Gillie and Walker, they united in executing an agreement; wherein it was “mutually agreed between the parties that all right and claim and ■demand heretofore accrued or arisen, or which may hereafter arise -or accrue, to either of the parties to this agreement against any and every corporations and corporation, person and persons, for or by reason of the erection and building and maintaining of the elevated railroad, * * * shall belong to and are hereby retained by and reversed and granted to William G. Lathrop, Jr., and his legal representatives and assigns, and are hereby excluded and excepted from any and every grant and conveyance of said premises, or any part thereof, witli full liberty and power and authority to said Lathrop to sue for, collect, compromise, compound and receive to his own use, and release and discharge any and every such claim and demand now existing and accrued, or hereafter to arise and accrue, against any corporation or corporations, person or persons, for such elevated railroad and the using and running of the same.” Thereafter, and. as of the date when the deed of the premises was made, another agreement was executed at the foot of the other agreement, to the effect, that it was “excepted from the grant and conveyance of the land; * * * said grant being made subject to the conditions of the above agreement.” These agreements were not recorded ; nor did the deed mention them, or except any rights; but was in the usual form of a deed with full covenants and warranty, conveying with all the hereditaments and appurtenances, etc. A few months later, Gillie and Walker'deeded the premises to the plaintiff. More than three years after the plaintiff’s purchase, Lathrop settled with the defendants for a payment of $2,500; discontinued his action and delivered to the defendants a release from all claims by reason of the construction and operation of their railroad and which stated Lathrop’s “intention to release, etc., all such right, etc.,- in 53d street and the easements therein appurtenant to said premises, which, on the 11th day of December, 1884,” (the date of his deed to Gillie and Walker), “were in the possession and occupation ”' of these defendants.

This present action was commenced by the plaintiff at a still subsequent date. Upon these facts the defendants argue that the agreement of Lathrop with Gillie and Walker evidenced the intention to abandon the street easements as between them, and that the subsequent payment to Lathrop in settlement of his action retroacted to the time of its commencement and so completed “ the act of extinguishment as of that date.” This argument must, however, assume for the agreement a more conclusive effect than either its language admits or the law would concede to it, and it slights the-grant to this plaintiff and regards him as a purchaser chargeable with knowledge of facts outside the record title, which bound him as to transactions to which he was not a party. Considering, in the first place, Lathrop’s action, we find it to be one of law, for the recovery of damages from the defendants for their unlawful invasion, of his rights of easement in the street and in such an action the recovery is confined to such temporary damages as have accrued to the commencement of the action; a rule which was carefully reviewed and re-asserted in Pond v. Met. E. R. Co., 112 N. Y. 86; 20 St. Rep. 479. In that case, it was said by the present chief judge that “ a recovery of judgment for damages for a trespass or the invasion of an easement does not operate to transfer the title of the property to the defendant, either before or after satisfaction, nor does it extinguish the easement.” In contemplation of the law, Lathrop’s action was the assertion of a claim for the damages theretofore suffered and future actions were maintainable to recover subsequent damages for the continued trespass until it ceased, or was converted into a rightful occupation, through compensation as the result of condemnation proceedings, or through payment of the value of the easements when ascertained and fixed by the court in its decree. What then was the effect of the agreement between Lathrop and Gillie and Walker, except to reserve to him his rights and claims for the damages theretofore sustained through the defendants’ trespass and, in addition, those,which might be further recovered by his grantees, Gillie and Walker, for the continuing trespass during their ownership ? Clearly nothing more. Having asserted his claims in his action, the agreement had obvious and only reference to such; with the added right to receive such further damages as Gillie and Walker, when owners, might be entitled to recover. It may possibly be that, as between'Lathrop and his grantees, Gillie and Walker, if, as the result of some action or proceeding, the defendants had acquired the right to occupy the street, through the payment of compensation for the property rights therein of Gillie and Walker, the moneys would be deemed in equity to have been received for Lathrop. But that, if 'true, merely goes to the effect of their particular contractual relations. The contract was neither one which affected the land, nor one which charged a subsequent grantee of the land with notice of any rights of the defendants gained therein. It is not really disputed that the agreement was ineffectual to reserve the easements in the street. They were appurtenant to the abutting property; were incapable of being separated therefrom, and passed upon a sale thereof to the purchaser with the right to any remedy for any invasion thereof. Kernochan v. N. Y. Elevated R. R. Co., 128 N. Y. 559 ; 41 St. Rep. 110 ; Pegram v. Same, 147 N. Y. 135 ; 69 St. Rep. 397. When Lathrop conveyed to Gillie and Walker, these easements appurtenant to the land passed with the grant, undiminished by their contemporaneous agreement; the operation of which, as before suggested, was to affect the ownership of Gillie and. Walker with a possible equity in favor of Lathrop, as to any claim they might have against the defendants by reason of their appropriation of the appurtenant easements. Although they were their property by force of the grant of the land to which appurtenant, doubtless, their grantor, under the collateral agreement might have required them to account to him for moneys received from the defendants as compensation for their occupation of the street. But nothing of the kind occurred and when, in turn, Gillie and Walker conveyed the land to this plaintiff, the grant passed with it the appurtenant street easements. The pending action of Lathrop and the agreements of the preceding owners had no effect upon the grant and none upon the grantee. We had occasion, quite lately, in the Pegram case to consider the effect' of a reservation in a conveyance, made pending a similar action to this, which was brought by the grantor to restrain the operation of the defendants’ road. The reservation in the grant there was of such a nature that were the easements iri question capable in law of assignment, it would have been effectual for that purpose. But the claim of the plaintiff in that case to be entitled, by virtue of the reservation in the grant, to the equitable relief demanded and the damages occasioned since date of his conveyance of the property, was denied. We there regarded the person, who was the owner of the abutting property, as having the sole right to the street easements and, hence, was solely injured by their unlawful appropriation and was solely invested with the right to ask that the defendants’ acts be restrained and that they be compelled to make compensation to him for the taking of his property, as a condition of their right to be there.

What was there to affect this plaintiff’s ownership in the land and its appurtenant street easements, or to prevent him from bringing this action? He was not a party to any of the antecedent transactions between his predecessors in the title. Nothing of record gave him notice of such an agreement. Upon what inquiry was he put when he purchased the property? The presence of the elevated railroad in the street was not notice of anything to him. It was a trespasser, for whose unlawful acts the law afforded remedies available to the abutting owner. Suppose he had inquired of his grantors and had learned of their-agreement with Lathrop, or of Lathrop’s suit for damages, would he then have been chargeable with notice of anything which would preclude him from proceeding against the defendants as trespassers upon his easements? Certainly not; for he would have learned of nothing which bound him, or which diminished his property rights under the grant to him. There had been no extinguishment of the easements. They existed and would exist, until properly appropriated and compensation made. The defendants had not acquired them, nor had they been abandoned. Lathrop’s action was incompetent for any purpose, except to recover any temporary damages sustained by him. It is impossible to say that Lalhrop’s acts, when owner, indicated a clear intention to give up his street easements. We may assume that he would have consented to do so, if compensation was made; but that important condition was not met by the defendants’ assent. The proper application of the rule would be, to work an extinguishment at law, that the acts of the party entitled to claim the servitude, or the easement, must be accompanied by the intention to ■extinguish and be followed by action upon it on the part of the party claiming adversely. “ The latter must close with the intent. It must be a joint intent of all the parties interested to get rid of the easement. Corning v. Gould, 16 Wend. 530, 538.

I think it quite needless to continue the discussion of the subject. I think the plaintiff was under no obligation to look beyond the records for anything affecting his title to the land he was about to purchase. As matter of fact, the defendants were trespassers, with no right as yet to occupy the easements of the abutting owner. The argument that Lathrop’s demand in the action, however irrevocable, was equivalent to an election to abandon the easements does riot commend itself. At most, it could be regarded as amounting to a conditional declaration of an intention to abandon. That would be sufficient, (2 Washb. Real Prop. 341), and it cannot be said that the defendants had seasonably acted upon it. Moreover, the importance of discovering from the circumstances the intention of the person, who is claimed to have abandoned his rights, is in explaining and determining the significance of the act. Unless the intention accompany the act, its value, if the rights of others intervene, is at once affected. Here, the attempted relinquishment of the easements appurtenant to the property by Lathrop was years after they had ceased to be his and when they had become the property of the plaintiff. The defendants were bound to know that they had passed to this plaintiff and they settled with Lathrop at their peril; if, in truth they did suppose that he could release these property rights to them. The terms, in which the release was couched, leave a not indistinct impression upon the mind that it was obtained and accorded for what it might be worth. Lathrop was in no position to release the easements, as of any time, and as against the then owner of the land his act was of no force. The only value of the release was as'a settlement with Lathrop for damages sustained by him during his ownership.

I think the judgment below was right and that it should be affirmed, with costs.

All concur (Beckham and O’Brien, JJ., in result).

Judgment affirmed.  