
    Brainard T. Norris and Noah Norris, Respondents, v. Charles F. Hoffman and William M. V. Hoffman, Appellants.
    First Department,
    July 13, 1909.
    Beal property—action to determine claim to lands—allegations complying with statute—extinguishment of easement by abandonment — complaint stating cause of action.
    The complaint in a statutory action to determine a claim to real property sufficiently states, the plaintiffs’ title-and possession for a. year prior to the action • and that the defendant unjustly claims an interest or easement therein, where it alleges that the plaintiffs acquired a title in fee simple by purchase, that the premises have been in their possession for the year next preceding the. commencement- of the action, and sets forth the facts upon which the defendants base a claim to an easement over a former carriageway. Whether the defendants’ claim be just or no is a question to .be determined in the action.
    A judgment in a prior action enjoining the defendants from using an easement over a carriageway for any other purpose than.as a passage to and from .private stables in the rear, is not res adjudieatd so as- to bar the same plaintiffs from maintaining a subsequent action to have the easement declared abandoned, where the question of-abandonment was not raised in the prior action and the facts underlying,the second acfi'on did not then exist.
    An easement created by deed is not extinguished by mere nonuser; but a cesser ' . to use under circumstances showing an intention to abandon the easement— no matter for how short a time—"works a destruction of the right.
    Suit to-have an easement declared abandoned. Complaint examined, and held, to state facts showing , not only that the legitimate use of the easement had been rendered impossible by the erection of an apartment house, but also that the easement had been abandoned, so that a demurrer to the-complaint was properly overruled. ■ . /
    Ingraham and Laughlin, Jj.,-dissented, with opinion.
    Appeal by the defendants, Charles F. Hoffman and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiffs, entered" in the office of the clerk of the county of Hew York on the 19th day.of February, 1909, upon the decision of the court-, rendered after a trial at the Hew York Special Term, overruling the defendants’ demurrer to the complaint.
    
      Charles P. Northrop, for-the appellants.
    
      Louis Frankel, for the respondents.
   McLaughlin, J.:

The defendants demurred to the'complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled and they appeal.

The complaint alleges, in substance, that the plaintiffs are the owners in fee simple of certain premises in the city of New York, known as No. 110 West Forty-seventh street, and that the defendants are the owners of premises next adjoining on the easterly side, known as Nos. 106 and IOS West Forty-seventh street; that in the year 1858 one Day was the owner of all three lots and conveyed the one now belonging to plaintiffs “ subject to a right óf way hereby reserved from 47tli Street to the stables in the rear of the two houses on lots next east of the above-described premises, * * * which carriageway is to be used in common by the owners of said three lots * * * as' a passage to their respective stables, and the gate or doorway is to be kept closed by the parties using the same and the carriageway kept in order at the mutnal and equal expense of the owners of said three lots” (Nos. 106,108 and 110); that one of the defendants’ predecessors in title conveyed that part of lot No. 106 on which the stable of said lot was located to one Gillig, and it thereupon became part of a lot fronting on West Forty-sixth street, by reason of which the easement belonging to that lot was destroyed; that at the time the easement was created the three lots were intended to be occupied separately by .different persons as the respective owners thereof; that they were so occupied Horn 1859 until about the year 1900, and the right of way used as a carriageway from the street to their respective private stables, and for no other purposes; that when the defendants acquired title to Nos. 106 and 108 the private houses on such lots were torn down and an apartment hotel seven stories in height, consisting of many apartments, was erected thereon; that thereafter the defendants rented the stable in the rear of No. 108 as a carpenter shop and attempted to use the carriageway referred to as a means of ingress and. egress, but were prevented from so doing by a judgment procured by these plaintiffs, which enjoined the defendants, their agents and servants “ from using said carriageway for any other, purpose than as a passage to and from private stables for the use of the owners of Nos. 106 and 108 West 47th Streetthat at the present time there is no stable in the rear of No. 106, the ground on which it.stood having been conveyed as stated ; that the building in the rear" of No. 108 is not and cannot be used as a .stable,. and has not been so used since the defendants acquired title -to such lot and erected the apartment hotel; that the apartment hotel1'is leased for a long' term of years, and is now occupied by tenants ■; that the defendants themselves do not reside there, have no intention of so doing, and have abandoned and surrendered the right of way through plaintiffs’ premises; that the purpose for which it was created has ceased to exist,, and that it is not necessary of beneficial to the defendants and is injurious to the plaintiffs. Judgment is asked that the easement be declared abandoned and surrendered, and that defendants and all claiming under them be barred from all claim of interest therein, and ■ forever enjoined from using the carriageway.

The action is a statutory one for the determination of a claim to real property; • The statute provides that where a person has been for one year in possession of real property or of an'-undivided interest therein, claiming it in fee or for life, or for a'term of years not less than ten, he may maintain an action to compel the 'determination "of any claim adverse to his, including any claim in the nature of an easement (Code Civ. Proc. § 1638), and that the complaint in such action must set forth facts showing the, plaintiff’s right to the real property "in question,..together with a-description. of the same, and that the defendant unjustly claims, or that it appears from the public i'ecords that the defendant might unjustly claim, an estate or interest or easement therein: (Code Civ! Proc. § 1639.)

It is claimed the complaint is defective in that it fails to :s'tate under what claim-, of title the plaintiffs" were in possession • of- the premises in question for the year immediately prior to the commencement of the action and also that a bare statement of the fact that defendants “ untpstly claim” an easement .is insufficient. Put it will be observed that" the complaint 'alleges that the plaintiffs’-are the owners in fee simple; that they acquired title by purchase in 1898 ; that'the premises have.been in their possession, for thé- year next preceding the commencement of the action; that ■ facts'are. fully set forth upon which the defendants basé their 'claim of a right to use the carriageway and whether such claim is just -of not is the question to be determined in the action. This, I think, is all that is necessary under the provisions of the Code cited.

It is also contended that the judgment in the prior action is res adjudicaba as to the right of the defendants to use the carriageway and that it estops the plaintiffs from asserting to the contrary. That action was to restrain the misuser of the easement, while this action is to have it declared abandoned. It was held in Griffen v. Keese (187 N. Y. 454) that^vliere a second suit between the same parties is upon a different cause of action, a judgment in a prior action is not conclusive as to all matters which might have been litigated, but only as to such poidts or questions as were actually in issue and adjudicated therein. The question of the abandonment of the easement does not seem to have been raised in the prior action, nor does it appear from the complaint that the facts upon which the present claim of an abandonment is predicated existed at the time the prior action was commenced.

This brings us to the consideration of the main question presented on the appeal, and that is whether the complaint states facts which, if proved, would entitle plaintiffs to the relief asked. The easement in question was created by reservation in a deed.. It could not be extinguished by mere non-user, but a cesser to use under circumstances showing an intention to abandon the easement — no matter for how short a time — works a destruction of the right. (Crain v. Fox, 16 Barb. 184; Snell v. Levitt, 110 N. Y. 595; Heartt v. Kruger, 121 id. 386; Roby v. N. Y. C. & H. R. R. R. Co., 142 id. 176; Deeves v. Constable, 87 App. Div. 352.)

In the case last cited the common grantor of the parties had, in 1853,.conveyed the property belonging to the plaintiffs subject to a covenant not to build any other than a first-class dwelling house thereon and not to build upon a certain plot described adjoining the premises of the grantor upon which stood a dwelling house. Thereafter the neighborhood ceased to be used for residential purposes and in 1879 the defendants’ testator, who had acquired title to the adjacent premises, tore down the • dwelling and erected a building for business purposes. It was held that this act operated as an extinguishment of whatever easement had theretofore existed. Mr. Justice Hatch, who delivered the opinion of the court, said “ Restrictive covenants of the character now under consideration are to be construed most strongly against tlie covenant, such construction to be: in accordance with the intent of the parties as expressed therein, coupled with the surrounding circumstances as nearly as the same can be ascertained.' * * We must have clearly in mind, in construing the covenant now under consideration, the purpose and use to which the land and building were-devoted and the circumstances surrounding such use at the time when the covenant was made, as well as to consider the terms of the covenant itself. * * * If there were no other reasons therefor, we should regard the radical change and the cesser of use of the property for residential purposes §s furnishing a sufficient ground to deny an enforcement of the covenant. In addition to this, we are also of opinion that when the successors of the grantor in the deed tore down the dwelling and erected a business block thereon * * * it amounted to an extinguishment of whatever easement had theretofore existed upon the adjoining property. Such act was inconsistent with the terms of the: restrictive covenant, its language, and intention.”

In the case now before us, when the easement was created, the three lots involved were occupied by their respective owners for private dwellings, and it seems to me" perfectly obvious from the language used in the grant that it was intended, and the complaint-so alleges, that the carriageway should be used only for the benefit of such owners as a carriageway to the private stables in the rear of their residences and while they so occupied them. When these dwellings were torn down and the defendants erected in their place a large apartment hotel they thereupon extinguished whatever easement 'they had theretofore in the carriageway, because such act was inconsistent with the terms of the reservation. The judgment in. the prior action determined that the right of .way could not be used for any other purpose. The circumstances under which it .was reserved and the necessity for its use no longer exist. Instead of the two private dwellings occupied by their respective owners lots 106 and 108 are occupied by many people in separate apartments, such as could not have been within the contemplation of the common grantor. (Kitching v. Brown, 180 N. Y. 414.) The facts alleged in the complaint, which are admitted by the demurrer, not only . show that the legitimate use of the easement has been rendered impossible'by the erection of the apartment house, but also that the easement has been abandoned. (Roby v. N. Y. C. & H. R. R. R. Co., supra; Canny v. Andrews, 123 Mass. 155.) That being so, the plaintiffs are entitled to be relieved from the restrictions upon their property.

The interlocutory judgment should, therefore, be affirmed, with costs, with leave to the defendants to withdraw the demurrer and answer on payment of costs.

Clarke and Scott, JJ., concurred ; Ingraham and Laughlin, JJ., dissented.

Ingraham, J.

(dissenting):

The complaint alleges that in the year 1858 one Harry Day was the owner of a certain.parcel of land, situate on the southerly side of Forty-seventh street, distant 100 feet westerly of Sixth avenue, being 75 feet in width upon' the street and 132 feet, more or less, in depth.

The owner seems to have divided this property into three lots of 22 feet each, beginning at the point nearest Sixth avenue. Upon the rear of these lots was constructed a stable for each lot, and there was a carriageway Connecting the street with these stables which commenced 166'feet west of Sixth avenue.' The plaintiffs are the owners of the westerly side of said lots, which included the fee of the carriageway. Day conveyed the westerly lot, including the carriageway,'with the following reservations: “ Subject to a right of way hereby reserved from 47th street to the stables in the rear of the two houses on lots next east of the above-described premises, as the same is shown on the annexed diagram marked ‘ Carriageway ’ and colored yellow, which carriageway is to be used in common by the owners of said three lots shown on said diagram as a passage to their respective stables.” The diagram annexed to this deed is made a part of .this complaint. - The westerly of these lots, with the carriageway, has been acquired by the plaintiffs, the conveyance of which was subject to the easement or right of way reserved in the original deed of Day conveying the westerly lot. The two easterly lots were conveyed by Day, the conveyances, after describing the particular property conveyed, granted a right of way from Forty-seventh street to the stables in the rear of - the premises above described, and also subject to a right of way, which said right of way above granted and reserved is shown on the diagram annexed to a certain deed whereby the westerly portion of the said premises were conveyed * * * and which [carriageway] is to be used in common by the owners of the three lots shown on said diagram as a passage to their respective stables.” The complaint alleges that the two easterly lots have been conveyed to the defendants; that at the time . of the original conveyance of the said lots, these three lots were intended to be occupied, each of them separately, by different persons as respective owners thereof, and they were so occupied from the year 1859 until about the year 1900, and the right of way created as aforesaid was used- by the said owners for the purposes of a carriageway from the street to their respective private stables and for no other purposes ; and that when the defendants acquired title to the two easterly lots the private houses on the said lots were torn down and a large apartment house of seven stories, consisting of several apartments, was erected on the said two lots, having a frontage of forty-four feet on Forty-seventh street -; that at the present time there is no stable in the rear of lot Ho. 106 West Forty-seventh street, the easterly lot of the plot in question; that the ground on which the stable stood was conveyed to1 the owner of the property fronting on- Forty-sixth street; that the building in the rear of premises Ho.'108 West Forty-seventh street, the center lot of the plot; is not used and cannot be used as a stable and has not been used as a stable since the defendants acquired title' to the property and erected the apartment hotel as above stated; that the defendants themselves do not reside in the said apartment house and have no intention of doing so, as the plaintiffs are informed and verily believe; and that by the erection of the said apartment hotel, as above stated, and the failure to use the said right of way as a carriageway to private stables in the rear of said premises by the owners thereof, the defendants abandoned and surrendered the right of way through and from the plaintiffs’ premises and that the use of the said carriageway is no longer necessary and that the purposes for which said carriageway was created have ceased to exist and the maintenance thereof is not beneficial to the defendants and injurious to the plaintiffs; and the plaintiffs, therefore, demand judgment that the defendants and all claiming.under them be barred from all- claim to an estate or interest or easement in the carriageway described in the complaint. A'demurrer was interposed, which was overruled.

I think it clear that there is no allegation which justifies the court in determining that the defendants have abandoned their easement or that the plaintiffs are entitled to have a judgment barring the defendants from all claim to an estate, interest or easement in the carriageway. The owner of the entire piece of property conveyed to the defendants’ grantors two lots on the street, upon which there were stables erected in the rear, and as an appurtenant to the property conveyed granted a right of way from Forty-seventh street to the stables in the rear of the premises conveyed. This easement became property appurtenant' to the defendants’ property and to which the plaintiffs’ property was subject. It was not restricted to a stable to be used by the occupant of either of the lots of which the right of way was an appurtenant, but the owners of the lots were entitled to maintain stables and the right of way appurtenant to them, although neither of them lived in the house upon the property to which the right of way was an appurtenant. This right of way or easement thus became the property which vested in the defendants’ grantors and wliich: passed by conveyance to the defendants. The plaintiffs’ property was conveyed subject to this easement or right of way. The grant did not in any manner depend upon the use to which the property abutting on the street should be put, or limit the right of the owners of the property to maintain a stable upon the rear and have access to the street from such stable. To justify a destruction of this easement they ,innst allege and prove either adverse possession for twenty years, or such facts as would justify a finding of abandonment. There are no facts alleged that would justify the court in finding an abandonment. The complaint further alleges that in an action brought to restrain the defendants from using one of these stables as a carpenter shop, a judgment was entered enjoining the defendants from using said carriageway for any other purpose than as a passage to and from private stables for the use of the owners of Hos. 106 and 108 West Forty-seventh street. Assuming that the adjudication bound the defendants as to their right to use these stables for any other purpose than that of a private stable, or any right of way,' except as a right Of way to a private stable, there was no adjudication which would be binding upon any one that the defendants had abandoned the right of way, but, if anything, an adjudication that defendants had a right of way to a private stable.

The rule is well settled that mere non-use is of no importance ks evidence of. abandonment. In Roby v. N. Y. C. & H. R. R. R. Co. (142 N. Y. 176) it was said: The mere use of the easement for a purpose not authorized, the excessive use or misuse, ór the temporary abandonment thereof, are not of .themselves sufficient to constitute an abandonment. * * * Under these authorities the acts claimed to constitute the abandonment of an. easement must show the destruction thereof, or that its legitimate use has been rendered impossible by some act of the owner thereof, , or some other unequivocal act showing an intention to. permanently abandon and. give up the easement.”" (See, also, Welsh v. Taylor, 134 N. Y. 450.) The plaintiffs, in accepting a conveyance expressly subject to the easement, recognized the existence óf. the easement, and in the absence of the allegation of any act to justify a finding that the easement liad been abandoned, there is n° cause of action to have it declared that the easement no longer affects the property, and for that reason the demurrer should have been sustained.

Laughlin, J., concurred.

Judgment affirmed,, with costs, with leave to defendants to withdraw demurrer and answer on payment of costs.  