
    Clinton Stephens, App’lt, v. Frederick C. Hockemeyer, Resp’t.
    
      (City Court of Brooklyn, General Term,
    
    
      Filed June 27, 1892.)
    
    1. Easement—Extinguishment of.
    An easement can be acquired or extinguished by adverse user for twenty years
    2. Same.
    Deeds of premises of which those of the parties hereto formed a part,executed in 1850 and 1852, contained a covenant against the erection or maintenance of a livery stable on the premises. Prior to 1871 there was a frame building on one of defendant’s lots, and one on the rear of both lots, both buildings being used as livery stables. In 1873 he removed said buildings, and erected a brick livery stable on the front of both lots. Held, to be such adverse user for twenty years as to extinguish plaintiff’s easement, if she had one, and if not, she had only an equitable right which cannot be enforced because of unreasoriable delay.
    Appeal from judgment dismissing complaint.
    Action to restrain defendant from conducting a livery stable business upon his two lots of land adjoining that of plaintiff, iu violation of a covenant in certain deeds.
    
      Brunnemer & Bennett, for app’lt; Otto F. Struse (Brewster Kissam, of counsel), for resp’t
   Clement, Ch. J.

The defendant is the owner of two lots of land situated on the easterly side of Marcy avenue in this city, and became such owner about October 1, 1868, and the plaintiff is, and has been since March, 1891, seized of a plot of land sixty feet by one hundred, adjoining the premises of the defendant In 1850, Matilda Ann Van Doren sold certain real estate, including the premises of plaintiff and defendant; to one John R Livingston, who, in 1852, conveyed a portion of the property, including also the premises of the plaintiff and the defendant, to one Bell. Both deeds contained a covenant against the erection or maintaining of a livery stable on the land described therein. This action was commenced March 31, 1891, and on March 31, 1871, and prior thereto, there were located on the northerly lot of the defendant a building twenty-five feet by eighty, and on the rear of the two lots another building twenty feet by fifty, and each building was erected and used as a livery stable, and the remainder of the southerly lot was used for the storage of wagons and manure. Eighteen years prior to the beginning of this action the defendant removed all the frame buildings on his lots, and erected in place thereof a brick livery stable of two stories in height, covering the two lots. The trial judge found that the entire premises had been openly used for the purposes of a livery stable for more than twenty years prior to the date of the commencement of this action, and for that reason rendered judgment for the defendant.

The right of the plaintiff, if there were no question of adverse user in the land of the defendant, is a negative easement. Trustees v. Lynch, 70 N. Y., 440; Parker v. Nightingale, 6 Allen, 341. Judge Allen says (Lynch case, supra, 447): “An easement in favor of and for the benefit of lands owned by third persons can be created by grant, and a covenant by the owner, upon a good consideration, to use or refrain from using his premises in a particular manner for the benefit of premises owned by the covenantor is, in effect, the grant of an easement, and the right to the enjoyment of it will pass as appurtenant to the premises in respect of which it was created.’’ If we assume that the plaintiff had a legal interest in the land of defendant (a question which it is not necessary to decide), then the easement could be extinguished by adverse user of twenty years. Woodruff v. Paddock, 130 N. Y., 618; 42 St. Rep., 650; Snell v. Levitt, 110 N. Y., 602; 18 St. Rep., 611; Actual knowledge by the plaintiff or the prior owners of his lots of such adverse user need not be show n. Judge Earl held in the case of Ward v. Warren, 82 N. Y., 265, that “ when the use of a way has for the requisite time been open, notorious, undisputed, under claim of right and adverse, the law presumes a grant of such way from the owner of the servient tenement, and such presumption is conclusive. * * * The owner of the servient tenement is not permitted to defeat such an easement by simply showing that he did not, in fact, grant it or have knowledge of its use.” An easement can be acquired or extinguished by adverse user of twenty years. In this case the defendant and his tenants had openly, notoriously, and under claim of right, used the buildings as a livery stable for twenty-two years prior to the commencement of the action. The portion of the lots not occupied by buildings in 1871 was used, as a place of deposit for manure" and for storage of wagons. The use of the lots for stable purposes has been uninterrupted for twenty-two years. In 1873 the defendant removed the frame buildings and erected a two story brick stable covering the two lots, but the use of the lots has been substantially the same, and that is sufficient, for the use need not be precisely in the same manner. Belknap v. Trimble, 3 Paige, 577.

The plaintiff contends that the extent of the right should be limited to that which has been in actual use for twenty years. The adverse user did not depend on the number of stalls in the stable, or on the fact that the stable was at first a frame building. Both lots were used for stable purposes, and it would make no difference legally in the use whether the horses were kept at one time on the north side of the building and afterward on the south. It would afford the plaintiff no relief if the use of the front of the southerly lot was restricted and the stable allowed to remain on the rear of the same lot.

We have discussed the case on the theory that the plaintiff, except for the adverse user, had a legal interest in the land of defendant. If the counsel for plaintiff is correct in his contention that plaintiff had no interest in the land, then the right of plaintiff is equitable, and we do not hesitate to hold that he cannot enforce such equitable right by reason of unreasonable delay. Calhoun v. Millard, 121 N. Y., 69; 30 St. Rep., 759.

Judgment affirmed, with costs.

Van Wyck, J., concurs.  