
    Bruce Nellis, Appellant, v. Jay Countryman, Respondent.
    Third Department,
    November 22, 1912.
    Real property — action to restrain trespass—when prescriptive right of way not acquired — mutual license to cross lands.
    Where in an action to restrain the defendant from entering upon or cross ing plaintiff’s lands, it appears that the crossing was one of convenience Only; that it was over farm lands from one gateway to another, and that there was no pretense of keeping to any particular track, the defendant cannot justify upon the ground that he had acquired a right of way by prescription.
    A prescriptive right of way over another’s land generally, without any defined line of travel, cannot be acquired.
    A mutual license between adjoining owners under which they cross each other’s premises cannot ripen into a prescriptive right.
    Kellogg, J., dissented; Betts, J., dissented on opinion of trial court.
    Appeal by the plaintiff, Bruce Nellis, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Montgomery on the 26th day of June, 1909, upon the decision of the court, rendered after a trial at the Montgomery Special Term, dismissing the complaint upon the merits. •
    
      Edward R. Hall, for the appellant.
    
      A. M. Mills, for the respondent.
   Houghton, J.:

The action is brought to restrain the defendant from entering upon or crossing certain lands of plaintiff. The defendant • justifies on the ground that he has obtained a right thereto by prescription.

It appears that the defendant and his predecessors in title have crossed for more than twenty years the plaintiff’s land to a lot in the rear bordering on another highway. The crossing of plaintiff’s land was not one of necessity but of convenience only because defendant’s lot was easier of access across plaintiff’s land. A barway or gate had been maintained in defendant’s fence between the plaintiff’s land and his own.' The lands crossed were farm lands and the line of travel was from one of two gateways upon the" highway upon which plaintiff’s land abutted to the gateway in the rear, but there was no pretense of keeping to any particular track. The first driver of the season made a track, and when there was one the next followed it, and when there was none they made one. In the winter they went anywhere they chose. In all instances, of course, the general direction was toward the barway of defendant’s fence. In summer they drove through crops, such as wheat, corn, potatoes and the like. The main travel was in the winter in drawing logs and wood.

The learned trial court found that a right of way existed by prescription, subject, however, to the right of the plaintiff to plow and crop the land and use it in the ordinary way.

We are of opinion there was not any such well-defined right of way as gave the defendant prescriptive title notwithstanding the defendant’s open and hostile use. In Bushey v. Santiff (86 Hun, 384) it is said: “A prescriptive right of way over another’s land generally, without any defined fine of travel, cannot be acquired either by the public or by an individual, and where a way is claimed by prescription, that there has been a certain and well-defined line of travel should be shown.” To the same effect is Holmes v. Seely (19 Wend. 507).

There is some evidence that ten dollars was paid for the right to cross, although no written deed or license is produced. It is quite manifest that the witness who so testified did so from hearsay rather than knowledge.

It is also quite probable from the evidence that the alleged right of way began and continued up to the last sixteen years before the commencement of the action when the defendant began to assert his absolute right thereto, under a mutual license between the parties owning the adjoining premises. The predecessors in title of the parties to the action apparently found it convenient to cross each other’s lands under such circumstances as to constitute a mutual license. If such was the beginning of the right, it could not ripen into prescriptive title. These neighborly acts ceased after a time and the defendant’s predecessors asserted a right to cross. Such assertion, however, was less than twenty years prior to the beginning of the present action.

We are of opinion the judgment should be reversed upon the facts, the particular questions of fact found by the trial court of which we disapprove being those numbered fourth and fifth.

All concurred, except Kellogg, J., dissenting, and Betts, J., who voted for affirmance on the opinion of the trial court.' (63 Misc. Rep. 564.)

Judgment reversed on the facts and new trial granted, with costs to appellant to abide event. The particular findings of fact of which the court disapproves being those numbered fourth and fifth.  