
    Fonda, Johnstown and Gloversville Railroad Company, Respondent, v. John Wright Olmstead, Appellant.
    
      Sight to maintain a sewer — it is acquired only by a written conveyance — a verbal consent is a revocable license.
    
    The right to maintain a sewer through the land of another is an easement in . realty and can be acquired by written conveyance only.
    A verbal consent to the maintenance of such a sewer amounts only to a revocable license.
    Appeal by the defendant, John Wright Olmstead, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Fulton on the 15th day of August, 1902, upon the decision of ■ the court rendered after a trial at the Fulton Trial Term without a jury, granting plaintiff damages and restraining defendant from interfering with certain fences, etc., in Saeandaera Park.
    
      
      J. Keck and Andrew■ J. Nellis, for the appellant.
    
      Baker de Burton, for the respondent.
   Kellogg, J.:

The Sacandaga Park appears to be a summer resort near the northern terminus of the plaintiff’s railroad, lying on both, sides of the railroad and on the westerly bank of the Sacandaga river. . A -highway leading out of Northville also runs through it. The park is laid out into streets and driveways and building lots for cottages, •and possesses the usual attractions to excursionists in the .way of amusements.

The defendant owns a lot known as the Wilson lot within the park bounds. The lot fronts on Riverside terrace or Sacandaga street, and extends easterly to the river; on the north it is bounded by lands of the plaintiff. One of the matters complained of by 'the plaintiff is the cutting down of the fence built by plaintiff on the north side of this lot, and threats by defendant to cut down every fence there erected. At the foot of the lot on the river the defendant has a boat landing and claims the right of access thereto over lands north of his lot, the claim being made that Fifth avenue,' as .appeal’s by the maps, extends from the highway to the river. There is no evidence to support this contention, the.map showing that this avenue ends at its junction with Riverside terrace or Sacandaga street, and that land between the end of this avenue and the river has been for many years used as a pumping station.

The defendant also owns another lot called the. Rialto, -immediately north of what is called on the map First avenue. The Rialto fronts on the Northville highway and extends to the river. About the division line between this lot and plaintiff’s land there is no reason for dispute, In 1811 the plaintiff purchased from Joseph •McC.uen, the then admitted owner, the strip of land now called First avenue, extending from the highway to the-river, and has ever since owned it. The defendant in 1899 purchased the Rialto lot, and his deed bounds it on the south by the strip of land owned by plaintiff “ and being separated therefrom Sy a wire fence.” This fence the defendant cut down, and on its being, rebuilt' by the plaintiff the defendant again cut it down, and he threatens to remove every fence there constructed in the future. The defendant insists upon free access upon plaintiff’s land for himself and his customers and patrons from the Rialto. This strip purchased by plaintiff in 1877 was never opened as. a highway.

As to the . sewer, the evidence does not support the claim of plaintiff to maintain one across the Wilson lot owned by defendant. The right to maintain a sewer through the land of another is an easement in realty and can-be acquired by written conveyance only. The verbal. consent here shown amounts only to a revocable license. The defendant should not have been enjoined from interfering with this sewer after a reasonable notice to plaintiff to remove or cease to use it.

I think the action is maintainable in this form. It is evident that defendant intended to carry on a system of petty annoyances which would result in loss to plaintiff and profit to defendant. The defendant did not avail himself of any application to the courts to establish any of his claims. He seems to have regarded physical force as his best means of redress.

I advise a modification of the judgment, striking out all reference, to a sewer, and as'modified affirmed, without costs to either party.

All concurred.

Judgment modified as per opinion, without costs to either party.  