
    Aaron Snell, Resp’t, v. George Levitt, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 26, 1888.)
    
    1. Easement—When extinguished.
    On the trial of an action brought- to recover damages for the wrongful interference by the defendant with the plaintiff’s easement and right to draw water from a certain spring on the defendant’s land, it appeared that, prior to August, 13, 1803, one Edward Shell, who was the owner of the land upon which the said spring was located, had, on that day, conveyed a portion of such land to one Francis Higgins. The deed contained a clause by which Edward Snell granted to the said Higgins the right t'a lay any kind of pump logs to convey water from the spring mentioned, and to conduct the same from the said spring by a prescribed route to the premises thereinbefore conveyed to the said Higgins. About a year afterward, the said Higgins not having made use of the said spring-under her grant, relinquished Under seal for $75.00 her right, title and interest in said spring, and the said Snell agreed thereby to allow her to-draw water from pump logs running across to his house ,as long as there-should be water in said logs. The pump logs referred to in this hitter instrument ran from another spring known as the R. spring. Soon after the execution of the latter instrument, said Higgins tapped the logs from the R.. spring and conducted the water therefrom to her premises, and water was thus conducted for many years, and as long as the pump logs remained. After the occupants of the Higgins premises ceased to obtain water from ' the R. spring, they obtained it by permission from a spring upon neighboring premises and never from the first mentioned spring. After the abandonment by Mrs. Higgins the said Snell conveyed the water from the-first mentioned spring to two houses upon his own premises, and with the-water running from the spring through pipes to those houses the premises-were several times bought and sold. There was a non-user of the ease ment for upwards of twenty years, and the substituted easement was used during a large portion of. that time. Held, that under said circumstances there was not even a question of fact for the jury that it was the duty of the court to rule as matter of law, that the easement was extinguished.
    3. Same—Extinguished by abandonment but not by non-useb.
    This easement having been acquired by Mrs. Higgins by grant, could not be lost by mere non-user for any length of time. It could be lost by adverse user or possession by the owner of the servient tenement, and the-easement could be lost and extinguished by abandonment, in some of the. modes or by some of the means recognized in the law.
    3. Same—Intention to abandon with non-useb will extinguish.
    Non-user for the period of twenty years under such circumstances as. show an intention to abandon and give up the easement, is sufficient 1o extinguish it, and even an abandonment for a shorter period under such circumstances as show an intention to give up and release an easement which is acted upon by the owner of the servient tenement so that it would work harm to him if the easement were thereafter asserted, would operate to extinguish the easement.
    Appeal from a judgment of the supreme court, general term, third department, affirming a judgment in favor of the plaintiff, entered upon a verdict rendered by a jury at Montgomery county circuit.
    The facts sufficiently appear in the opinion.
    
      E. Countryman, for appl’t; N. C. Moak, for resp’t.
    
      
       Reversing 39 Hun, 227.
    
   Earl, J.

The action was commenced to recover damages for the wrongful interference by the defendant with plaintiff’s easement and right to draw water from a certain spring on defendant’s land known as the Kingsbury spring. The-material facts, as they appeared upon the trial, are as follows: Prior to the 12th day of August, 1862, one Edwin. Snell was the owner of the land upon which the Kingsbury spring is located, and on that day he, with his wife, conveyed, by warranty deed, to one Francis A. E. Higgins, a. portion of such land, which deed contained the following-clause: The said parties of the first part also grant to-said party of the second part the right to lay any kind of pump logs to convey water from the spring above the site-of the old barn on the premises purchased by the above-named Edwin Snell of W. & 0. Kingsbury, and to conduct the same from said spring down along the creek running therefrom until the same can be carried in a straight line to the premises hereinbefore conveyed to the party of the second part; said party of the second part, however, is not to have and use from said spring more than half an inch stream of water, and in digging to lay or repair said logs, said party of the second part is to replace the ground and smooth the same over so as not to do any more injury than necessary and indispensable.” There was at the same time upon the same land owned by Snell, another spring, called the Kailroad spring, from which the railroad company had the right to conduct water through logs. On the 1st day of July, 1863, Mrs. Higgins, not having made any use of the Kingsbury spring under her grant, executed under seal the following instrument, which was also signed by Edwin Snell, and attested by two witnesses: For the consideration of seventy-five dollars I agree to relinquish all my right, title and interest held by me in a certain spring owned by Edwin Snell, known as the Kingsbury spring; also said E. Snell agrees to allow me to draw water from pump logs running across lots to his house, as long as there shall be water in said logs. The pump logs referred to in that instrument - were the logs running from the Railroad spring near the house of Mrs. Higgins to the railroad; and soon after the execution of that instrument, she tapped the logs from the' Railroad spring and conducted water therefrom to her premises; and water was thus conducted for many years, as long as the pump logs remained there, or until the railroad company changed the mode of drawing water from that spring. After the occupants of the Higgins premises ceased to obtain water from the Railroad spring, they obtained it by permission from a spring upon neighboring premises, and: never from the Kingsbury spring.

This action was commenced on the 20th day of December, 1883, and prior to that time no person holding under the grant to Mrs. Higgins ever conducted water from or used-the water of the Kingsbury spring, and no attempt whatever was made to use the easement granted by Edwin Snell prior to October, 1883. During all the time, Edwin Snelij and those who held under him, conducted water from the' Kingsbury spring, and during portions of the time used the whole thereof.

The premises conveyed by Edwin Snell to Mrs. Higgins’ were subsequently conveyed by her by warranty deed con-5 taining the same description of the premises and of the easel ment to conduct water from the Kingsbury spring as was contained in the deed to her; and by several mesne conveyances, the title to the same premises with the same description came to the plaintiff. The premises owned by Edwin Snell, containing the Kingsbury spring, were conveyed by him and his wife to John B. Churchill, by warranty deed,' dated the 30th day of March, 1867, which deed contained this reservation: The parties of the first part hereby except and reserve the right and privilege at any time to lead water through a half-inch pipe ” from the Kingsbury spring to the house in which they lived. Subsequently the following conveyances of the same premises were made: On the third day of December, 1867, by Churchill and wife to James Bates; on the 29th day of July, 1875, _ by Bates and wife to Nathan Briggs; on the 3d day of December, 1876, by Briggs and wife to the First National Bank of St. Johnsville; and on the 1st day of March, 1881, by the bank to the defendant Levitt. These conveyances were all by warranty deeds which contained the same reservation as to the use of water from the spring to be drawn in a half-inch pipe, and none of the deeds contained any reference, whatever, to the easement granted by Edwin Snell to Mrs. Higgins.

■The easement having been acquired by Mrs. Higgins by grant could not be lost by mere non-user for any length of time. It could be lost by adverse user or possession by the owner of the servient tenement, and the easement could be lost and extinguished by abandonment in some of the modes or by some of the means recognized in the law. Non-user-for a period of twenty yeará, under such circumstances as show an intention to abandon and give up the easement, is sufficient to extinguish it, and even an abandonment for a shorter period, under such circumstances as show an intention to give up and release an easement which is acted upon by the owner of the servient tenement so that it would work harm to him if the easement where thereafter asserted, would operate to extinguish the easement.

Here there is no doubt of the actual intention of Mrs. Higgins to abandon the easement acquired by her from Edwin Snell. She expressly agreed to relinquish it for the consideration of seventy-five dollars in money and the right to draw water from other logs for an indefinite time; and that agreement was acted upon for more than twenty years. During that time the defendant and others through whom he claims, purchased the servient tenement by warranty deeds without any notice whatever of any claim of an existing easement under the deed to Mrs. Higgins in the premises conveyed. These facts are undisputed, and upon them the trial court should have held and ruled, as matter of law, that the easement was abandoned and extinguished. Voglar v. Geiss, 51 Md., 407; Steere v. Tiffany, 13 R. I., 568; Dyer v. Sanford, 9 Met., 395; Curtis v. Noonan, 10 Allen, 406; Morse v. Copeland, 2 Gray, 302; Pope v. Devereaux, 5 id., 409; King v. Murphy, 140 Mass., 254; Queen v. Chorley, 12 Ad. & El. (N. R.), 515; Crossley v. Lightowler, L. R. 2 Ch. App., 482; Cartwright v. Maplesden, 53 N. Y., 622; White’s Bank v. Nichols, 64 id., 65. In Washburn on Easements (3d ed.), at page 661 and subsequent pages, the author says: “The owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, especially if a third party become interested in the servient estate after such act of abandonment; and it would operate unjustly upon him if the exercise of the easement were resumed in favor of the dominant estate. It is not easy to define, in all cases, what would be such act of abandonment as would destroy a right of easement, and each case seems to be a matter for a jury to determine. But nothing short of an intention so to abandon the right would operate to that effect, unless other persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could, not be resumed without doing an injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise from a mere non-user of an easement. The' question of abandonment is one of intention, depending upon the facts of the particular case. But time is not a necessary element in a question of abandonment. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to time. Although an abandonment is sometimes inferred from a non-user for twenty years, it seems to depend less upon the duration of the time than the acts which accompany the ceasing to use the easement for its effect upon the right. The length of time that this is continued is one of the elements from which the intention to abandon or retain the right is inferred. * * * The cesser to use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as a release, without any reference to the time during which such cesser has continued.” And the text of the learned author is well supported by the authorities which he cites.

Here, after an abandonment by Mrs. Higgins, Edwin Snell conveyed the water from this spring to two houses upon his own premises, and with the water running from the spring through the pipes to those houses, the premises have several times been bought and sold. There was a non-user of the easement for upwards of twenty years, and a substituted easement was used ■ during a large portion of that time.

Under such circumstances we think there was not even a question of fact for the jury; but that it was the duty of the court to rule as matter of law that the easement was extinguished.

The learned counsel for the respondent places great stress upon the fact that the instrument executed by Mrs. Higgins and dated July 1, 1863, was not recorded, and he claims that it could, therefore, have no operation as against the subsequent conveyances of her premises to parties who purchased for a valuable consideration without notice of the instrument, and placed their deeds upon record. This contention might be well founded if the extinguishment of the easement depended solely upon that instrument, as it would have been void as against subsequent conveyances first recorded. 1 R. S., 762, § 38, and 756, § 1; Nellis v. Munson, 13 N. Y. State Rep., 825. But if there had been no instrument whatever, and the same agreement had been made, the same consideration paid and the same acts done indicating an unequivocal intention to abandon' the easement, it would have been just as effectually extinguished; and the easement having thus become extinguished, there was nothing for the deeds under which the plaintiff holds, or for the recording acts to operate on. The easement ceased to have any existence, whatever, and could not be the subject of a conveyance; having been extinguished, it could be brought into existence again only by the act of the owner of the servient estate or by prescriptive use. The instrument is of importance only as showing with the other facts an intention to abandon the easement..

We are, therefore, of the opinion that the learned court below fell into error, and that the judgment should be reversed and a new trial granted, costs to abide event.

All concur.  