
    B. Springstein against H. B. Schermerhorn.
    
      °^.ofda laud was leased j," ^ij/e’/reser! íém, and gram! 1c“foae«ao°u1tabi)f maeno¡%od&c.ftia mises, with com* out of any'part the woodland of A ; and at* terwards rievi* c Vü “u.e tí-Mt,“tiío®s on devitor!1*enter! p^tiuon. “"‘in menL^mw d|andouiéri’¿ So?“ with® ¡8* by^Bumté-’ surrender!6 or E’FTa’ke16666®' p/opersie(°rf ”he neiue"se”t,and Septefi! ro’/tiííní Sse,6by I c hew,' thatvas v^won^nThe ttoPm!¡,”r, the acceptance of new leases did-' not operate as a of the burutot-tbeíe!¿ sees, having aci 'cptc? neB leases jrozn the íSncTórtSagreement, aré-' lease of the old was to he presumed ? end was thereby estopped frdm all claim under the lease to him ; nnd that/ for these reasons, the-right-granted to-B:, to take Mioyczs from the otheriauds of A., was gone.
    THIS was an action of trespass guare clausum fregit, anti for Cutting WOod, &C..
    In 1707, Killian Van Rensselaer, proprietor of tlie manor of .Rensselaermick, gave a lease in fee, to Jacob Schermerhorn, of a tract of woodland,, now situate in the town of Schodack, in Rensselaer county, containing, by estimation, four hundred; acres of land, more or less.; subject to the yearly rent of one tenth pajrt of the produce of the demised premises. The lease con-tamed the following clause : “ Together withreasonableesfotws out of the woods of the said manor, for building, fencing, and „ , . . . ii , „ „ fuel, on the said woodland,”' ¿fee.; and also the following reserva1 ■ ... ° tian : “ Reserving the privilege to the neighbouring tenants of the said manor, of free pasturage for commonable cattle, within the bounds of the said tract, if not in fence; to gather and take away stone; and to cut -and carry away wood, for fencing, building, and fuel, for their uses on the said manor only.”
    In 1763, Jacob Schermerhorn conveyed part of the- demised premises, by metes and .bounds, to his son, Ryers Schermerhorn ; .and the deed contained the following clause : “ As also free Iiherty and privilege for the said Ryers Schermerhorn, his heirs and assigns, to cut and carry away wood for fuel and fencing, for the use of the conveyed premises only, out of any part of the woodland of the said Jaco5 Schermerhorn, and excepting and reserving to the lord of the manor, the tenth of the produce of all grain, the growth of the same premises.”
    
      Jacob Schermerhorn, by his will, dated the 16 th of July, 1766, devised all his lapd, lying at Schodack, on the main, shore, to his $onsy Johannes, and. Hendrick, their heirs and assigns, for ever. each the equal half thereof.
    On the death of the testator, during the revolutionary war, the devisees entered on.the premises so devised, which were part i i t 1 of the land above leased, and, soon after, divided" the same between them. ,
    
      By an agreement, made the 24th oí November, 1791, betweenRyers Schermerhorn, John Schermerhorn, Jacob Schermerhorn, Hendrick Schermerhorn, and several others, of Schodack, of the Qne part> ancj Stephen Van Rensselaer, proprietor of the said manor, by Thomas L. Whitbeck, his attorney, of the other part; reciting, that the parties of the first part, being tenants in common, of certain ■ lands in Schodack,- by virtue of four several leases from Killian Van Rensselaer, the proprietor of the manor of - Rensselaer, specifying their - dates, and desirous to hold the lands, each, for himself, in severalty, and subject to a certain, annual stipulated rent, they agreed to release, or surrender up, their former leases, to the party of the second part, and take new leases, agreeable -to a survey to -be made, subject to the annual rent of ten bushels of wheat for every hundred acres ; and the party of the second part agreed to execute new leases accordingly, reserving only ten bushels of wheat and two fat hens, yearly, for each hundred acres, free from any quarter Sale ; with free privilege for cutting wood in such lands, in the said manor, as shall, from time to time, remain Waste, and not particularly appropriated or demised.
    In pursuance of this agreement, Hendrick Schermerhorn, oh the 23d of June, 1792, accepted a new lease from S. Van Rensselaer, the proprietor of the manor, for divers parcels of land in the said manor, including the premises devised to him, as aforesaid, and described with metes and bounds, in which was the following clause : “ Together with reasonable estovers for building, fencing, and fuel, on said pieces or parcels of land, out of such parts of said manor, as shall, from time tó time, remain waste, and not particularly appropriated or demised by the said Stephen Van Rensselaer, his heirs, and assigns,” ' Johannes Schermerhorn and Ryers Schermerhorn, accepted similar leases for their respective lands, in January, 1794.
    
      Hendrick Schermerhorn died intestate, in 1796, and in 1798 his heirs sold, and conveyed to the plaintiff, 147 acres of the land and premises so leased to Hendrick Schermerhorn. The plaintiff had married a daughter of Johannes Schermerhorn, who inherited, from her father, twenty acres of the land so leased :.to Johannes. The plaintiff entered into the possession of the premises so. conveyed, and devised, to him, and enclosed the same with a fence ; and the defendant broke the fence of the plaintiff, and cut and carried away wood from off the said land,. 
      Myers Schermerhorn, a few years ago, died intestate, and his lands descended to his son, H. R. Schermerhorn, the defendant, who claimed the right to cut and carry away wood out of the close of the plaintiff by virtue of the conveyance from Jacob Schermerhorn to Ryers Schermerhorn, in 1763.
    Two witnesses, for the defendant, testified, that the plaintiff had complained, that the right of the Schermerhorns to cut wood on his land, was ten times more burdensome to him than the rent payable to the lessor. That the witnesses lived near the premises ; and that since 1792, and long before, the defendant and his father exercised the right claimed by them, to cut wood on the said premises, with the knowledge of the plaintiff, and they never heard the right questioned, until a short time before the commencement of the present suit. Two witnesses, for the plaintiff, testified, that they lived near the premises, and that the privilege claimed by the defendant and his grantor; to cut wood on the premises, had been a subject of controversy between^ them and the plaintiff, and those under whom he derived his title, for many years, and that actions of trespass had been brought before justices of the peace ; and that the plaintiff had uniformly and openly denied and resisted the privilege claimed by the defendant.
    It was agreed by the case, that, if the court should be of opinion that the plaintiff Was entitled to recovery, an interlocutory judgment should be entered, and a writ of inquiry of damages issue thereon; otherwise, a judgment of nonsuit was to be entered.
    
      A. Van Vechten, for the plaintiff,
    contended, that the defend* ant had no right of common by descent, from his father, Ryers Schermerhorn. The right which Ryers had, was liberty to him, and his heirs, and assigns, to cut and carry away wood, for fuel and fencing, for the use of the part of the demised premises conveyed to him by Jacob Schermerhorn. The right of common of estovers, in this case, was not portable in its nature; and by the conveyance of parcel of the farm, it became extinct. There can be no apportionment in such a case. Suppose Jacob Schermerhorn had, by separate conveyances, par-celled out his 400 acres to forty different persons, with the same clause as to common of estovers, could all the different tenants exercise rights of common, originally granted to enc only ? Again, all the rights or privileges gráhted to Jacob Scherinerhom, and which; passed to: his, sons, have been surrendered ; and ‘ jf pie defendant justifies, it must be under a new title, not under jj.jjg orjgjnaj grant to Ins ancestors-.. Here is not only a surren-' derby express stipulation.;, but a •surrender./by operation..of law. The son accepted a new lease for the premises derived. from his. father. The acceptance of the new lease, inconsistrent with a. former., operates, as a surrender of.such former deedu * - . . 1 , , . ■ it may be objected, perhaps, that there is no certain evidence of an actual .surrender, of the original lease... But the agreement for the new lease was. express, that the old one was to be surrendered. Such surrender was a condition precedent to granting the new lease. The manner of obtaining the new leases, connected with the agreement, shows, conclusively,1 that' the Condition oh which the., new leases were-to be given., Was' •fulfilled. ¡But it will be said, that the. defendant, not being "a party, is not estopped, . But where a surrender is. -necéssary to give- effect to. a new lease,:the parity who accepts the new. deed is incapacitated to deny the surrender of the old deed¿
    Again, it may,, perhaps, be said,, that the- new lease is not for the whole óf the premises contained in the old lease; and so cannot Operate as a surrender .of The. whole. Granting this, still the surrender is- good pro tanto f if so, it must opéra te\as a complete surrender of the right of common ; for to. what part can the right of common attach? By the surrender of a part, the common is extinguished and gone.
    
    
      H. Bleacher,. contra. .
    
      Henry and Johannes, S. took, the land,. devised to them by Jacob, subject to the right of common before. granted by Jacob to Ryers. The defendant,, being the-heir of Ry érs, the' land descended to him,., with the . right-of common of estovers., A grant' of the land carries with it the right - of common, which is attached to the land. Then what; has been done to release this right of common ? The agreement made with the lord of the manor, was merely for the purpose of changing the nature of the rent; .to make it certain, to, avoid quarter1sales, and that each might hold in severalty. It was at the instance, and for the benefit, of the tenants, who weré parties-' to that agreement. The lord of the manor had no concern with the rights of commons. As no release of these rights to the' lord of the manor, are produced, or shown, the court will not presume that they have been released.
    Then what is the effect of the new lease to Ryers Schermerkorn? It was only for a part of the lands derived from his father. The premises originally granted comprised two islands in the Hudson, which are not included in the new lease.; if he surrendered a part, the right of common became apportioned, and he retained the right of common as to the part not surrendered. If so, the plaintiff must fail in this action, for the quantity or extent of the defendant’s right is not to be settled in this case. If Ryers retained any part of the land to which the right of common remained attached, the law of apportionment will apply to that part. Common of estovers may be apportioned as well as any other common.
    Again, the paroi evidence shows that the defendant has exercised this right of common for more than 20 years, under the eye of the plaintiff, and an acknowledgment of this right on his part. Common may be gained by long sufferance, as well as lost by long neglect. The law, as in the case of ancient lights, presumes a grant, from the lapse of time.
    
      
      
         Co Litt. 147. b. 164. b. 4 Vin. Ab. Common. pl. 2. 3 Vin. Ab. Appor. (A.) pl. 3 note. Id. (B.) pl. 11. Finch's Law, 158.
    
    
      
      
        Shep. Touch. 301. 302-4. Burr. 1980. Rob. on Frauds, 253. 261.
    
    
      
      
        Bec. Ab. Common. (E.) 5 Vin. Ab. 16. Common. (E.a.) Cro. Eliz. 594.
    
    
      
       5 Vin. Ab. 15 Common. (E. a.)
    
   Platt, J.

delivered the opinion of the court. The only question which it is deemed necessary to consider, is, whether the agreement with Stephen Van Rensselaer, and the acceptance of new leases by Ryers Schermerkorn and his two brothers, in pursuance of that agreement, have operated to devest him and his heirs of their original privilege of cutting wood in those parts of the 400 acre tract which are included in the new leases to Johannes and Hendrick Schermerkorn ?

It is contended, by the plaintiff’s counsel, that the acceptance of the new leases was, virtually, a surrender, in law, of the original lease, and of all rights which the new lessees had acquired under it.

According to Sir Edward Coke, “ a surrender is a yielding ■up of an estate, for life or years, to him that hath the immediate estate in reversion or remainder, wherein the estate for life or years may drown, by mutual agreement.” (Co. Lit. 337. b.)

Here, it must be observed, that the original lease to Jacob Schermerkorn was a grant in fee, subject to rent. There was, therefore, no immediate estate of reversion or remainder in the lessor or his heirs, in which a lesser estate could merge or drown; so that the doctrine of surrender, express or implied, has, strictly, no application to this case.

j think, however, that law, as well as equity, forbids the cjajm sej. yp fay the defendant.

1st. On the ground that a release by Byers, Johannes, and Hendrick^Schermerhorn, tú Stephen Van Rensselaer, is, -legally, to be presumed; because the agreement to release; with the "reasons and motives given for it; the acceptance of new leases for the premises in question, and exacting a general covenant of warranty against all claims, are acts utterly inconsistent with the existence of the old lease, so far as regards the lands included in the new leases. '’

The agreement bound Ryers Schermerhorn and his brothers to release all claims to the 400 acre tract; and, upon condition of their so doing, Stephen Van Rensselaer covenanted to give new leases, in lieu of the old lease. Fair dealing, and the obligation of their contract, required them to extinguish all previous interest and claims, before they accepted new leases for the same land, with general warranty of title. Besides, the case agreed on expressly states, that the lessees accepted the new leases “ in pursuance of the said agreementwhich implies that, upon executing the new leases, all the previous conditions were complied with on the part of the lessees ; and, if so, the release must have been duly executed.

2dly. On the ground of estoppel, I think the defendant is barred of all claim under the original lease.

The locus in quo was not, indeed, a part of the lands for which Ryers Schermerhorn accepted a new lease to himself; but the transactions embraced in the agreement with Stephen Van Rensselaer, were the subject of one entire contract, wherein the covenants and stipulations of each of the parties were, necessarily, dependent upon, and connected in interest with, the acts to be done by every other party. I consider, therefore, that, in executing that agreement, Ryers Schermerhorn contracted not only for a new lease to himself, for his particular part, but, also, that new leases should be given, in complete seve-. rally, for the other parts., to his brothers, Johannes and Hendrick. At the time of making that agreement, Ryers had a privilege (appurtenant to his other land) of cutting wood for fuel and fencing, on any part of the 400 acre" tract; and, by that agreement, he consented and appointed that the landlord should execute' new leases to Johannes and Hendrick, for particular parts of that tract, without reservation of his privilege. Those new leases have, accordingly, been executed, and include the 7 locus m quo.

Estoppel may be by matter in pais as well as by matter of record; as, by accepting an estate, making partition, &c. (Co. Lit. 352. a.) ■ '

So, if a man take a lease of his own land, he is estopped from setting up his original title. (Co. Lit. 47. b.) And, whether Ryers took á new lease to himself, or directed, in writing,under seal, that his landlord should give new leases to his bro.thers, for the premises in question, he is equally estopped from asserting any claim in opposition to the new leases. -‘

From the view which we have taken, the paroi evidence in the case is irrelevant; and the plaintiff is entitled to judgment-

judgment for the plaintiff,  