
    George H. Treadwell, as Ex’r, etc., of Lewis Munsion, dec’d, App’lt, v. Samuel Inslee, as Ex’r, etc., of John Reid, dec’d, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed June 3, 1890.)
    
    1. Easement—When not cheated by grant—Drainage.
    Williams, the owner of several lots adjoining, constructed a covered ditch through them and on October 14, 1845, conveyed one of the lots to Davidson, and from him by several mesne conveyances it reached defendant’s testator in May, 1878, none of the deeds containing any reservation of the use of any drain, etc., across said lot, but they did convey the right to the use of a drain leading over Williams’ lot to a public drain in the street. In November, 1849, Williams conveyed two lots on either side of Davidson to Vail, and by several mesne conveyances one of them reached plaintiff’s testator. The deed to Vail made no mention of a drain, but the one by him in 1851, and the subsequent ones, purported to convey “ the free and uninterrupted use of a drain in common with the other owners.’’ Held, that plaintiff’s testator did not become the owner of a right of drainage across defendant’s testator’s lot by the clause in the Vail deed, etc.
    2. Same—Adverse user.
    Adverse use of an underground drain which is not visible or apparen to the owner of property does not begin to run until it is brought to his notice, and such owner has the right to rely upon appearances, and to believe that the apparent condition is the real one.
    3. Same—Constructive notice.
    The owner of defendant’s lot was not chargeable by the record with' constructive notice of the existence of the drain from the date of the deed to Davidson.
    
      Appeal from an order of the general term of the third judicial department, which reversed a judgment entered upon the decision of the special term and granted a new trial.
    This action was brought by the plaintiff’s testator to restrain the defendant’s testator from interfering with a drain running from the plaintiff’s premises across the defendant’s premises, and to compel him (defendant’s testator) to restore the portion of the drain which he had destroyed.
    Prior to October 14, 1845, Platt Williams was the owner of four lots of land on Patroon street, now Clinton avenue, in the city of Albany, and of land adjoining said lots on the south and fronting on Orange street.
    On the date last named, said Williams and wife conveyed to one Davidson the lot owned by the defendant, and thereafter said lot by several mesne conveyances was conveyed to John Reid, the defendant’s testator. Said Reid became the owner in May, 1873. None of said deeds contained any reservation of the use of any drain or of any right or privilege of drainage through or across said lot.
    The deed to Davidson did, however, convey the right to “ the use of a drain in the rear of said premises, leading from thence through another lot of said party of the first part (Williams) to a public drain in Orange street,” and said right of drainage was by several mesne conveyances of said lot conveyed to said Reid.
    On November 20,1849, said Williams and wife conveyed to one Charles 0. Vail two plots of ground on Patroon street, one lying easterly and one westerly of the lot conveyed to Davidson, the latter of which two plots of land included the lot now owned, by the plaintiff. The deed to Vail made no mention of any right of drainage or of any right to use any drain through or across the defendant’s lot.
    On December 2, 1851, said Vail conveyed the lot now owned by the plaintiff to one William Rennie, and by several mesne. conveyances the title thereto was, prior to September 4, 1860, vested in James Vane, who, on said date, conveyed the same to plaintiff’s testator. The deed from Vail to Rennie purported to convey the free and uninterrupted use of a drain in common with the other owners,” and such right is expressed as being conveyed in all subsequent deeds of the lot to and including the deed from Vane to the plaintiff’s testator.
    When plaintiff’s testator became the owner of said lot, there existed a drain which ran therefrom across an intervening lot and across the defendant’s lot, to the lot of one George Carroll, which is next east of defendant, and then entered a drain running southerly across a lot owned by one Flood to Orange street, which then and for some time thereafter was used to drain the plaintiff’s lot
    In May, 1885, the said drain was discovered by plaintiff’s testator to have been cut off and stopped up with clay upon defendant’s lot.
    Flood derived the title to his lot from Williams, and the conveyance to him in October, 1853, was “ subject to a certain right of drainage or sewerage from four certain lots heretofore sold and conveyed by parties of the first part (Williams) and lying on Patroon street, through a drain or sewer heretofore constructed in and upon said lot hereby conveyed, and this right is hereby re- ■ served. The party of the second part, his heirs and assigns, being hereby bound to keep in repair that part of said drain or sewer as it now exists which runs through the lot hereby conveyed.”
    The trial court found that by the deed from Yane and wife the plaintiff’s testator became the owner of a right of drainage across the defendant’s lot and thence across the lot on the east to a drain running southerly to Orange street; that the defendant’s testator held' his lot subject to such right of drainage and became the owner of said lot with due noticelof said right; that the plaintiff had, prior to May, 1885, used and enjoyed said right of drainage for more than twenty years; that the drain from plaintiff’s lot through defendant’s lot and thence to Orange street was the one referred to in the deed from Williams to Davidson, and that defendant and his grantors were made acquainted with the condition of the lots in reference to the drain by the deed of Williams to Davidson and took title with notice and knowledge of the changed condition of the lots as related to the drain.
    Further facts appear in the opinion.
    
      G. L. Stedman, for app’lt; Isaac Lawson, for resp’t
    
      
       Affirming 11 N. Y. State Rep., 798.
    
   Brown, J.

The finding of the special term that the plaintiff’s testator became the owner of a right of drainage across the defendant’s lot by the deed from Yane and wife cannot be sustained.

The earliest conveyance by Williams of any of the property affected by the drain in question was of defendant’s lot to Davidson in 1845. That conveyance contained no reservation of the use of 'any drain for the benefit of the lots lying west of it, and it cut off all such right from any lots subsequently conveyed by Williams.

Williams continued to own the plaintiff’s lot until November, 1849, and his conveyance of that lot in that month to Yail did not purport to convey any right to the use of the drain.

Whether or not a drain existed at that time does not appear in the evidence and is not important or material in view of the fact that the right to use it was neither reserved in the deed to Davidson or conveyed by the deed to Yail.

The earliest mention of a drain in connection with plaintiff’s property is in the deed from Yail to Rennie in 1851. That deed did not locate it or describe it as running across defendant’s lot. The right to use such drain was conveyed to Yane, and he conveyed it to the plaintiff’s testator in 1860. No deed from any owner of defendant’s lot prior to 1860 is proven conveying any such right, and it is apparent that at that date no title by user could have been acquired by the owner of plaintiff’s lot. The finding quoted, therefore, appears to be without any evidence to sustain it.

The right to the use of the drain for the benefit of the plaintiff's lot, if such can be sustained, does not rest upon a conveyance thereof, but upon a title obtained by a use adverse to the defendant.

The special term found as a fact that prior to May, 1885, when the plaintiff’s testator first discovered that the drain was cut off, he had used and enjoyed such right of drainage for more than twenty years under claim of right.

If that finding can be sustained, it is not disputed that the judgment of the special term was right, and the only question necessary to be considered upon this appeal is whether such finding has evidence to support it.

The conveyance to Munsion, plaintiff’s testator, was in September, 1860. He testified that he first knew of the drain when he took possession of the property. That it commenced at his house, ran southerly to the rear of the lot, thence easterly across the defendant’s lot to the lot of George Carroll, where it entered the sewer leading southerly to Orange street

That is the earliest date at which the evidence fixes the existence of the drain across defendant's lot, and there is no evidence that at that time its existence was known to the owner of that lot. John' Reid, defendant’s testator, purchased the lot in May, 1873. Munsion testified that in 1875 he had paid five dollars to John Reid’s brother for repairing the common sewer running across Flood’s lot to Orange street, and assuming that John Reid was cognizant of that payment, and that it permits an inference that he must then have known that the drain from plaintiff’s lot to the common sewer crossed his property, that is the earliest date at which the evidence charges him with knowledge of the fact.

These facts do not establish an adverse user.

To establish an easement in the land of another by prescription or adverse use it is essential that the use and claim of right be actually known by the person against whom the adverse user is claimed, or it must be so visible, open or notorious as that knowledge of such use or claim will be presumed. Ward v. Warren, 82 N. Y., 265; Parker v. Foote, 19 Wend., 309-311; Nicholls v. Wentworth, 100 N. Y., 455; Washburn on Easements, 3rd ed., 160 ; Hannefin v. Blake, 102 Mass., 297.

An underground drain is not visible or apparent to an owner of property, and the adverse user did not begin to run until it was brought to the notice of the defendant’s testator, in 1875, and it is apparent that at the time of the commencement of this action such user had not ripened into a title.

Mor can the right of drainage be sustained upon any claim that the drain existed at the time of the deed to Davidson.

If Williams had constructed this drain for the benfit of all the lots on Patroon street, the right so far as it related to the lots west of defendant’s lot was lost upon the conveyance to Davidson.

As already stated the drain was not an apparent or visible incumbrance and in the. absence of actual knowledge of its existence Davidson had a right to rely upon appearances and to believe that the apparent condition was the real one.

In such a case as this the grantee takes his land according to the terms of his deed, and if the deed gives no notice of any right reserved in favor of the grantor across the lot conveyed, the latter is freed from any servitude theretofore existing and the grantor is estopped by his covenants from asserting any. Butterworth v. Crawford, 46 N. Y., 349; Huyck v. Andrews, 113 id., 81; 21 N. Y. State Rep., 924.

The ■ appellant’s claim that the owner of defendant’s lot is chargeable by the record with constructive notice of the existence of the drain from the date of the deed to Davidson cannot be sustained.

The deed to Davidson gave no notice that the lot thereby conveyed was burdened with a servitude in favor of any lots of Williams on the west. It conveyed the right to the use of a drain across the grantee’s lot on the east, leading to the common sewer to Orange street. This was beneficial to the lot conveyed. But there is no intimation that lots on the west were to enjoy a similar benefit, or that Davidson’s lot was burdened with a right of drainage, in their favor. None of the subsequent deeds for this lot recognized any servitude in favor of plaintiff’s lot.

The fact that the deed to Davidson was not recorded until May, 1873, long after the record of the deed from Williams to Yail, is not a material fact in the record.

If the deed to Yail had conveyed a right of drainage across Davidson’s lot the failure to record the Davidson deed might have been important. But, as already pointed out, this deed did not purport to grant or convey any right of drainage.

It is only when two conveyances purport to convey the same property that a subsequent purchaser obtains a priority over an earlier grantee by reason of priority of the record of his deed.

Neither was the defendant or his grantor chargeable with notice of the contents of the Flood deed. That conveyance was subsequent to both the deeds to Davidson and Yail. It did not appear in the chain of title to either lot; and if it did I fail to see how the fact that Flood’s lot was burdened with the right of drainage in favor of all the lots on Patroon street could alter the rights which the owner of the defendant’s lot acquired under the deed to Davidson.

The order must be affirmed and judgment absolute rendered for the respondent, with costs.

All concur.  