
    Abraham Veeder, Appellant, v. Abram Relyea, Respondent.
    
      Bight of way by prescription — knowledge of claim of right — mutual grant.
    
    There are two ways of establishing a right of way by prescription or user ; one, by use, combined with actual knowledge on the part of the owner whose land is being used, that the party using his land claims a right to so use it; and the other, by a use so open and notorious, that knowledge of a claim of right wall be presumed.
    When, in an action of trespass upon land, the defendant alleges, in justification, and gives evidence tending to prove a right of way in himself over the plaintiffs land by prescription and adverse use, evidence on the part of the plaintiff, disproving actual knowledge of any claim of right by the defendant, is competent and material.
    Evidence that each of two contiguous land owners had been accustomed to use a portion of the other’s land for passage, and that each had subsequently forbid, den the other to use his land, does not, of itself, raise a presumption of an original mutual grant which will take from the jury the determination of the question whether there was such a grant.
    Appeal by tbe plaintiff, Abrabam Yeeder, from a judgment of tbe Supreme Court in favor of tbe defendant, entered in the office of tbe clerk of Albany county on tbe 2'Tth day of May, 1892, upon tbe verdict of a jury rendered at tbe Albany'Circuit, and from an order denying tbe plaintiff’s motion for a new trial, made upon tbe minutes.
    
      Robert J. Lcmdon, for tbe appellant.
    
      J. H. Glute, for the respondent.
   Herrick, J.:

Tbis is an appeal by tbe plaintiff from a judgment entered upon tbe verdict of the jury in favor of tbe defendant.

The action was brought by tbe plaintiff against tbe defendant for an alleged trespass committed by tbe defendant upon plaintiff’s land and private road, breaking tbe lock and entering through tbe gate' of tbe plaintiff, and in and upon tbe land and private road of tbe plaintiff and damaging it.

Upon tbe trial tbe plaintiff limited bis claim for damages to tbe trespass committed upon tbe road and no other place.

Tbe defendant in bis answer denied the trespass and alleged that the private road mentioned by tbe plaintiff in bis 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 be bad been in possession and occupation of tbe same for over thirty years, and that bis grantor had bad uninterrupted possession, occupation and use thereof for some years before the plaintiff purchased tbe property from bis, the defendant’s, grantor.

TJpon tbe trial the plaintiff proved title in himself to tbe premises in question, and the defendant attempted to prove tbe use and occupation by himself and bis grantor of said private road, and attempted to establish a right of way in himself by user.

After tbe close of tbe defendant’s case, evidence having been given in bis behalf tending to show that be had for a long series of years been accustomed to traverse tbe land of the plaintiff over tbe private road in question, or in tbe immediate vicinity thereof, tbe plaintiff in rebuttal was recalled as a witness in bis own behalf, and asked the following questions :

“ Q. Since Abram Relyea moved onto bis farm in 1858, have ' you up to tbe time of tbe commencement of tbe present trouble, known that be claimed a right of way over your land ?
“ Q. From 1858 down to tbe commencement of tbis trouble, did you know that Abram Relyea when he crossed your land, crossed under a claim of right to cross ?
“Q. From tbe use made of your lands by Abram Relyea in passing from tbe rear farm to the highway, and from your use of bis lands in order to get to your back lot, bow did you understand tbe way to be used ?
u Q. Did you believe and .understand that Abram Relyea’s use of your road during tbe time you used Ms 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 or 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.)

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 Ms 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 of 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 would 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 wMch the person made who was using his land.

Eor that reason I think the learned trial justice erred in sustaining the objections to the questions herein set forth.

It appeal’s 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.

Sometime in the year 1877 the defendant, through his attorney, forbid 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.

Eor the errors indicated the judgment should be reversed and a new trial granted, costs to abide the event.

Mayham, P. J., and Putnam, J., concurred.

Judgment reversed and a new trial granted, costs to abide-the event.  