
    Oscar T. Marshall, Plaintiff, v. John P. Wenninger, Defendant.
    (Supreme Court, New York Trial Term,
    June, 1897.)
    1. Private easement — Abandonment — Adverse possession.
    Where an action is brought to recover moneys paid upon a contract for the sale of real estate, upon the ground that the title is imperfect, and it appears that a map, filed in a clerk’s office in 1851, shows a road named “ Calhoun Terrace,” fifty feet in width, and which, upon one side, restricts the premises sold, in area, by twenty-five feet, the facts that this road has not been used by abutting owners, entitled tp use it, for a period of twenty-five years; that during that period a stable has stood at one end of it; that at the other end it has been continuously closed by a fence with a small gate; that its center line has been marked for a- number of years by a fence inclosing the defendant’s property; that trees have existed, unremoved, upon the line of the road, some of which were fifteen years old in 1852, while affording proof of nonuser, do not show an abandonment, nor do they prove an adverse possession by, and a consequent title in, the owner of the premises, nor can he be said to have a marketable title.
    2. Same — Nonuser.
    Nonuser alone, however prolonged, cannot operate as an abandonment of a right of way conferred by grant, and it is only where there appears to have been an intentional abandonment, Or some element of adverse possession, operative according to the rules of law, that the grantee of the easement can be said to have lost it.
    3. Same — Public statutes are immaterial.
    Where the matter in dispute relates to a private easement of access to a road, the rights of the public become immaterial, and statutes relative to public streets at one time laid out or delineated and not thereafter used, and providing that streets so abandoned shall cease to exist, have no application.
    4. Rescission by vendee — Offer or tender unnecessary.
    Where a vendee brings an action to recover moneys paid by him on a contract for the sale of real property and for damages which he has sustained, his action is' in rescission from and not in affirmance of the contract, and he need prove no offer or tender upon his own part, where the vendor is shown to be in default through his inability to provide a marketable title.
    
      Action to recover back moneys paid upon a contract for the sale óf real property and for damages represented by the plaintiff’s actual expenditures for examining the title, upon the ground that the title offered "was imperfect and so properly refused by the plaintiff.
    Edward Kaufmann, for plaintiff.
    Frederick P. Forster, for defendant.
   Bischoff, J.

The defect in the title offered, as complained of by the plaintiff, was that the land to be conveyed, by the terms of the contract, was part of a tract at one time laid out in accordance with a certain map filed in the office of the clerk of Westchester county, on December 27, 1851, by which map it appeared that a road-named “ Calhoun Terrace,” fifty feet in width, was an open way between certain streets on either side of the tract.

The land covered by the contract in suit, taken by metes and bounds, extendedlo the center of this.road,-and,,therefore,.if the defendant’s title to the full lot .unincumbered by a right of way reserved to others, was not apparent., the plaintiff, by acceptance of the deed offered, would have failed to receive that for which he had bargained, since upon one side, the land would have been restricted in area by twenty-five, féét, and his possession diminished ■ so far, because of this existing right of way.

Adjoining property, abutting upon “ Calhoun Terrace,” had been conveyed by deeds bearing reference to this map and to the road delineated, and, accordingly, an easement of access appeared, of record to have been created, the defendant’s possession and his , ability to confer an unincumbered title to the full lot being thereby seriously affected. White’s Bank, etc., v. Nichols, 64 N. Y. 65, 73.

Prima facie, then, the plaintiff’s refusal to take title was justified; but the defendant has sought to show an abandonment of this easement upon the part of the grantees of-the adjoining property abutting upon “ Calhoun Terrace ” for its whole length, the proof adduced being that for twenty-five years the road had not been used by the parties who were by grant entitled to enjoyment of this right of way.

I am prepared to .take the facts, as testified to for" the defendant, that Calhoun Terrace ” has not been used as a way to the streets on either side since the date of the filing of the map in question;

that at one end of this road, as delineated, a stable has stood for twenty-five years, and that the other end was continuously closed by a fence with a small gate, that the center line of the road has been marked' by a fence inclosing the defendant’s property for a number of years, and that trees existed unremoved on the line of the “ Terrace,” some of them fifteen years old in 1852.

Granting this, I do not feel justified in holding, under the authorities, that title has vested in the defendant to the whole of the property which he contracted to convey.

ETonuser of this roadway is certainly apparent, and this for a period greater than twenty years, but the evidence does not show au adverse possession' by the defendant of that portion of the road which abutted upon this property. The possession, such as it was, was consistent with the nonuser of the right of way by the adjoining owners, but it was not hostile to the rights of these others, if asserted, and hence failed of the essential elements of an adverse possession.

ETor can I find in this case evidence of an abandonment of the easement sufficient to support a determination that the title offered was marketable, in the face of the records which, unexplained, presented its obvious defect.

While an actual abandonment, to operate as such, need not be followed by particular period of time of nonuser in order that the land may be freed from the easement, yet nonuser, alone, for any length of time does not operate as an abandonment of a right of way conferred by grant (Welsh v. Taylor, 134 N. Y. 450, distinguishing Snell v. Levitt, 110 id. 595), and only where there appears to have been an intentional abandonment, or some element of adverse possession, operative according to the rules of law, can the grantee of the easement be said to have lost it. Id. "We know of no inflexible rule of law,” saith the court, " which requires the owner of an easement of this kind to walk or drive over the passageway at stated intervals, in order to save his title from ex-tinguishment.” Hennessy v. Murdock, 137 N. Y. 317, 326.

It might be that the defendant could withstand a demand upon the part of the adjoining owners that his way be reopened and remained unobstructed, but the proof furnished in this action does not show with sufficient certainty that the plaintiff would be protected if he should take the title offered.

The fact of nonuser only is shown, and if I should say that an abandonment was to be implied because of the duration of that nonuser, this would uot protect the plaintiff (as purchaser) from subsequent attack by the grantees of the easement who may well be able to rebut by proof any inference of abandonment which might be drawn from the evidence now furnished, in an action to which they are not parties and by the determination of which they are in no sense concluded.

Under the circumstances I am unable .to hold that the plaintiff was offered a marketable title and that he was required, reasonably, to accept it. Moore v. Williams, 115 N. Y. 586; Irving v. Campbell, 121 id. 353.

Eeference has been made to certain statutes relative to public streets, at one time laid out or delineated, and hot thereafter used, these statutes providing that streets so abandoned should cease to exist, but whether “ Calhoun Terrace ” fell within the provisions or not is unimportant here, since the matter in question has to do with the private easement of access, and thus the rights of the public in this roadway, whether closed or open, become immaterial. Haight v. Littlefield, 147 N. Y. 338.

The defendant also contends, that the plaintiff’s proof is insufficient because' readiness to perform upon his part, at the date finally fixed for the closing of title, was not shown.

True it is that the plaintiff failed to prove a tender of the amount called for by the contract at that time, having made no offer of payment at all, but an action of this character proceeds rather upon a rescission of the contract than upon its affirmance, and so no offer or tender by the purchaser need be shown to support a recovery where the vendor is in default through his inability to provide an acceptable title. Ziehen v. Smith, 148 N. Y. 558.; Miner v. Hilton, 15 App. Div. 55.

There should bé judgment for the plaintiff for $720..20, with costs and an extra allowance of five per-Centum.

• Judgment for plaintiff, with costs.  