
    (70 Hun, 541.)
    VEEDER v. RELYEA.
    (Supreme Court, General Term, Third Department.
    July 8, 1893.)
    1. Right op Way—By User—Evidence.
    In an action for trespass on a private road, defendant claimed a right of way by user, and gave evidence to show that for many years he had been accustomed to traverse plaintiff’s land along or near the road. Helé, - that it was proper for plaintiff to testify that he did not know that defendant in crossing did so under a claim of right.
    3. Same—Gbant—Instructions.
    The only evidence of any grant between plaintiff and defendant was that each used a portion of the other’s land, and the evidence was conflicting as to whether the same line of travel had been used by them. Moreover, it appeared that defendant forbade plaintiff to use his land, . and that thereafter plaintiff forbade defendant the use of his land. Held, that it was error to charge that, there being no direct evidence of an agreement under which the user commenced, there is nothing to rebut the presumption of a mutual grant, as such charge was practically a decision that there was a mutual grant, when it was a question for the jury.
    Appeal from circuit court, Albany county.
    Action of trespass by Abraham Veeder against Abram Eelyea. From a judgment dismissing the complaint on the merits, with $172.44 costs, entered on a verdict in favor of defendant, and from an order denying a motion to set aside the verdict, and for a new trial, made on the minutes, plaintiff appeals.
    Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Robert J. Landon, for appellant.
    J. H. Clnte, for respondent.
   HERRICK, J.

This is an appeal by the plaintiff from a judgment entered upon the verdict of the jury in favor of the defendant. The action was brought by the plaintiff against the defendant for an alleged trespass committed by the defendant upon plaintiff’s land and private road, breaking the lock, and entering through the gate of the plaintiff, and in and upon the land and private road of the plaintiff, and damaging it. Upon the trial the plaintiff limited his claim for damages to the trespass committed upon the road and no other place. The defendant, in his answer, denied the trespass, and alleged that the private road mentioned by the plaintiff in his complaint was a private road belonging to and in possession of the defendant as a right of way from a public highway, and alleged that he had been in possession and occupation of the same for over 30 years, and that his grantor had had uninterrupted possession, occupation, and use thereof for some years before the plaintiff purchased the property from his, the defendant’s, grantor. Upon the trial the plaintiff proved title in himself to the premises in question, and the defendant attempted to prove the use and occupation by himself and his grantor of said private road, and attempted to establish a right of w7ay in himself by user. After the close of the defendant’s case, evidence having been given in his behalf tending to show that he had for a long series of years been accustomed to traverse the land of the plaintiff over the private road in question, or in the immediate vicinity thereof, the plaintiff, in rebuttal, was recalled as a witness in his own behalf, and was asked the following questions: “Question. Since Abram Eelyea moved onto his farm in 1858, have you, up to the time of the commencement of the present trouble, known that he claimed a right of way over your land? Q. From 1858 down to the commencement of this trouble, did you know that Abram Eelyea, when he crossed your land, crossed under a claim of right to cross? Q. From the use made of your lands by Abram Eelyea in passing from the rear farm to the highway, and from your use of his lands in order to get to your back lot, liow' did you understand the way to be used? Q. Did you believe and understand that Abram Eelyea’s use of your road during the time you used his lands was a matter of mutual convenience?” Objections were made to each of them on the part' of the defendant, and the objections sustained, and the evidence ruled out. The evidence introduced by the defendant had been to prove a right of way in himself over the land of the plaintiff by prescription and adverse use. There is no claim nor pretense of any grant. To make title by prescription or adverse user, the use and possession must be under a claim of title. Trustees of East Hampton v. Kirk, 68 N. Y. 459-465. This claim of right or title must be with the knowledge of the person against whom it is made. It must not be a use or occupation, clandestine or by stealth, and unknown to the servient owner. Ward v. Warren, 82 N. Y. 265. It may be established by showing actual knowledge on the part of the person against whom the adverse user is claimed that the person using the land claims he has a right or title to use it, or by a visible, open, and notorious use, so visible and notorious that knowledge of such use or claim by the servient owner will be presumed. Treadwell v. Inslee, 120 N. Y. 458-465, 24 N. E. Rep. 651. Thus it will be seen that there are two ways of establishing a right of way or use by prescription or user,—one, by use, combined with actual knowledge on the part of the owner whose land is being used that the one using his land claims a right to so use it; and the other, by use so open and notorious that knowledge of a claim of right will be presumed. It follows, it seems to me, that evidence in negation of either one or both of these ways of acquiring the right by use is perfectly competent and material. Evidence disproving actual knowledge of any claim or right compels the party to rely upon the other way to establish his claim; that is, that the user was so visible, open, and notorious that the law would presume knowledge. Where a party has actual knowledge of the claim, much less evidence should be necessary to establish a right by user than when it appears that, as a matter of fact,, he did not have actual knowledge of the claim which the person made who was using his land. For that reason I think the learned trial justice erred in sustaining the objections to the questions herein set forth.

It appears in the case that the “private road,” so called, reached to the defendant’s premises, and that the plaintiff was accustomed to cross the defendant’s premises for a short distance to reach a back lot belonging to him, so that they mutually used each other’s land. Some time in the year 1877 the defendant, through his attorney, forbade the plaintiff the use of his land, and thereafter plaintiff notified the defendant that he must not use. his land. The only evidence of any grant, mutual or otherwise, is the fact that each used a portion of the other’s land. Just where it was used, or whether the same line of travel had always been used by them, seems to be in some doubt; there is a conflict in the evidence in relation thereto. In submitting the case to the jury the court charged, among other things, the following: “There being no direct evidence of an agreement under which the user commenced, there is nothing to rebut the presumption of a mutual grant.” This, in substance, is a direction to the jury that the evidence raised the presumption that there was a mutual grant, and that there was no evidence in the case to the contrary; and substantially took from the jury all consideration of the evidence, and did not leave them at liberty to determine from the evidence whether there was or was not a mutual grant, but was practically a decision by the court that, as a matter of law, upon the evidence presented, “there was a mutual grant of a right of way.” This, I think, was error. Whether there was or was not such a grant was a question of fact to be determined from all the evidence in the case. The notice given by each of the parties to the other was evidence to be taken into consideration by the jury as to how the parties themselves understood the matter. For the errors indicated, the judgment should be reversed, and a new trial granted, costs to abide the event. All concur.  