
    Henry Welsh, App’lt, v. John Taylor, Resp’t.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed October 1, 1892.)
    
    1. Basement—Abandonment by non user oe alley way.
    The question, of abandonment of easement by non user is one of intention, but time is not a necessary element therein. A cesser to use accompanied by an act clearly indicating an intention to abandon the right would have the-same effect as a release without reference to time.
    
      3. Same—Use oe easement.
    A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land.
    ■3. Same—Estoppel.
    The court upon the trial of this action found that the owners or some of them of adjoining property to an alley, to which tney had an easement by deed of ingress and egress, knew that a building was being erected over the alley and made no objection to the erection of the same. Held, that the plaintiff, who succeeded to the title of all the owners, was not estopped unless all his grantors were estopped, and no knowledge was shown except in one who was a life tenant.
    4. Same—Abandonment.
    So long as there was no occasion on the part of one of the adjoining owners to use the alley, the mere existence of a gate was not notice of any adverse claim on the part of their co-tenants.
    5. Same.
    Nor did the erection of a house and fence without an opening on the side of the alley, indicate an intent to abandon the easement.
    6. Same—Payment oe taxes.
    The children of a life tenant who was bound to pay the taxes had a right to assume that she would pay the taxes, and in the absence of any evidence that they knew she had refused to do so, the mere fact of nonpayment was no evidence that they intended to abandon the use of the alley.
    Appeal from a judgment of the general term of the first judicial department, which affirmed a judgment of the special term.
    The plaintiff is the owner of property in Hew York known as Hos. 143 and 145 Franklin street, bounded easterly by an alleyway. Defendant is the owner of property known as Hos. 189 and 141 Franklin street, bounded westerly by said alley.
    The common source of title was Alexander L. Stewart. He conveyed Hos. 143 and 145 to plaintiff’s grantors, with the “ right and privilege of passing and repassing through said alley without hindering, obstructing or annoying such other persons as may be legally privileged to pass through the same; and subject at all times hereafter to the bearing and paying of a just proportion of the expenses of regulating and repairing the said alley and of such taxes and assessments as may be laid thereon.”
    Hos. 139 and 141 were conveyed to defendant’s grantors with a similar right expressed in similar language, and the further right to extend any building erected or to be erected on the front, part of the lot under or over said alley, bpt so as to leave the same seven feet nine inches wide and not less than one story high in the clear.
    The alley was eighty-three feet deep, and at a distance of sixty-two feet from Franklin street broadened out so that at its rear end and for a distance of nineteen feet therefrom it was about twenty-one feet wide. The evidence showed that in 1836 Smith Harriott acquired title to Ho. 143, which abutted upon the alley on the west, with the easement in the alley. He died in 1844, leaving a will whereby he devised the property to his wife Mary Ann for life, and upon her death to his three children, Frederick P., Smith and Estelle. Mrs. Harriott subsequently acquired title to Ho. 145. She died in 1877, and in 1879 plaintiff purchased both pieces o£ property. All deeds in plaintiff’s chain of title conveyed the same rights in the alley subject to the same duties. The defendant and one James Wilson acquired title to a part of 189 and 1841 in 1859 and the balance in 1872. Wilson conveyed bis interest to defendant in 1877.
    Defendant’s property was of an average depth exceeding one hundred feet, and included a lot about 28 feet by 28 directly in the rear of the alley. The right to build over and under the alley was appurtenant to a lot fronting on Franklin street and sixty-two feet deep.
    In 1873, defendant and Wilson erected a four-story brick building across the full width of the alley and covering twenty feet of the rear thereof. They also maintained a gate at the entrance. This action was brought to compel the removal of the building and the gate, and to enjoin defendant from interfering with plaintiff’s easement.
    The defense was (1) that during the ownership of the Harriotts the easement had been abandoned ; and (2) that the building had been erected with the knowledge of the owners of 143 and 145, and without objection on their part, and that plaintiff had purchased with knowledge of such facts, and was therefore estopped from asserting any right to use the alley.
    The trial court found that the owners of 143 and 145, or 'some of them, knew that the building was being erected over the alley, and made no objection thereto, and that Mary Ann Harriott, Smith Harriott, and the other owners of 143 and 145, by their acts, manifested an intention to abandon, and did abandon, the right to use the alley, and as a conclusion of law, that plaintiff had failed to establish any right to the easement, and dismissed the complaint.
    Further material facts appear in the opinion.
    
      James C. Carter, for app’lt; John E. Parsons, for resp’t.
    
      
       Reversing 27 St. Rep., 301.
    
   Brown, J.

—The judgment in this action was first reversed by the general term, but upon a re-argument it was affirmed. The final decision of the court rested upon the authority of Snell v. Levitt, 110 N. Y., 595; 18 St. Rep., 611; and it appears from the general term opinion that the proposition assumed to have been there decided, which was made applicable to this case, was that an easement acquired by grant may be extinguished by actual abandonment or non-user for a period less than twenty years. That question was not involved in the facts of the case cited, and its consideration was not necessary to its decision. There was in evidence a release in writing of the easement executed by the grantee thereof, who was the plaintiff’s grantor, made in consideration of seventy-five dollars and the grant of a new easement. There was non-user of the easement in question for upwards of twenty years, and use of the substituted easement during a large-part of the same period. The question, therefore, whether nonuser alone for a greater or less period than twenty years would have extinguished the easement was not before the court. Nor is there anything in the opinion to the effect that such question should be answered in the affirmative.

On the contrary it was said by Judge Bari in stating the law .applicable to the extinguishment of such an easement that it could not be lost by non-user for any length of time. All that the court there decided was that the release of the right claimed by plaintiff, followed by non-user for upwards of twenty years and use for a long period of a substituted easement, constituted conclusive evidence of its extinguishment and that the trial court should have so ruled as a question of law. The main reliance of the plaintiff in that case was upon the fact that the release was not recorded and was therefore void as to him, he being a purchaser without notice. But that claim was not sustained on the ground that the agreement to give up the easement and the unequivocal intention thereby expressed to abandon it was the effectual and material thing to be considered and not the fact that such an agreement was expressed in writing and executed under seal. It was this element in the case that led the learned judge writing the opinion of the court to say that: Non-user for a perlon of twenty years under such circumstances as show an intention to abandon and give up the easement is sufficient to extinguish it And even an abandonment for a shorter period under such circumstances as show an intention to give up and release an easement which is acted upon by the owner of the servient tenement, so that it should work harm to him if the easement was thereafter asserted, would operate to extinguish it”

The learned general term evidently overlooked the qualifying • language of the last sentence quoted. It was applicable to the case then before the court There was the release and the use of the substituted easement showing an unequivocal intention to abandon and in reliance on that act use of the waters of the spring in question by the grantor of the easement and those who subsequent to the release had acquired his title. There was, therefore, a clear case of estoppel, and that an easement created by grant could be extinguished by estoppel was the effect of the language used in reference to an abandonment for a less period than twenty years which I have quoted from the opinion.

In Washburn on Easements, (4th ed., p. 707), it is said that the question of abandonment is one of intention, but that time is not a necessary element therein. A cesser to use accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release without reference to time.” And this proposition is fully sustained by authority. Pope v. Devereux, 5 Gray, 409; The Queen v. Chorley, 12 Q. B., 519; Moore v. Rawson, 3 B. & C., 332; Dyer v. Sanford, 9 Met, 395; Veghte v. Raritan Water Power Co., 4 C. E. Green, 143; Crain v. Fox, 16 Barb., 184; Cartwright v. Maplesden, 53 N. Y., 622. Snell v. Levitt, is not therefore an authority for the proposition that an easement created by grant can be extinguished by non-user. Under the rule of that case an intention to abandon must exist in connection with and as a cause of non-user. The case is distinguished from the one before us in that there was evidence of an unequivocal act releasing the easement. The learned counsel for the respondent, while not claiming that that case goes further than 1 ■have indicated, contends that the evidence of the intention to abandon, which is necessary to sustain the conclusion reached at the trial, exists in the facts found by the court. Giving him the full benefit of that decision, we may examine this case in the light of its authority.

The judgment in this case rests upon two grounds: (1.) An estoppel based upon knowledge of the erection of the building, and omission to object to it by the owners of Nos. 143 and 145 Franklin street. (2.) Abandonment of the easement.

The trial court found (1) “ that the owners of Nos. 143 and 145 Franklin street, or some of - them, knew that the building was being erected over the alley, and made no objection to the erection of the same.”

This finding, if supported by the evidence, is insufficient to create an estoppel. The owners of 143 and 145 at the time of the erection of the building, were the widow and three children of Smith Harriott. The plaintiff has succeeded to the title of all of them. And if any of the children who were owners of the fee were ignorant of the erection, the act, was a wrong to them, and in violation of their rights. The plaintiff, therefore, is not estopped from asserting his rights in the alley unless all his grantors are estopped. The evidence does not show more than that Mrs. Harriott knew that the building was being erected. She was a life tenant, and was in the legal possession of the properly. But knowledge on her part did not affect the rights of her children:

There is no pretence that her daughter, Mrs. Schilling, ever received any information concerning the building or had any knowledge of it. Frederick P. Harriott testified that he was first informed of it in the summer of 1885 and Smith Harriott testified that he was informed by his mother that Taylor & Wilson were putting up a building in the rear of the lot, but there is no evidence that he knew at the time of its erection that it was upon any part of the alley, and this might very well have been the effect of the statement on his mind, as the defendant and Wilson owned a lot twenty-eight feet deep directly in the rear of the alley. Smith Harriott and his brother resided at Cherry Valley in this state and were rarely in the city of New York. It does not appear that the fact that Mrs. Harriott informed her son that a building was in process of erection was known to Taylor & Wilson and nothing that any of the owners of No. 143 did induced them to build on the alley.

Taylor & Wilson were not the owners of the fee of the alley. They possessed the right to use the easement in common with the owner of the adjoining property. Their deeds conceded the right of -equal enjoyment in the owners of such property and limited them to the enjoyment of the privilege of ingress andv- egress upon the terms set forth in the instrument In contemplation of law the rights in themselves and others with their limitations were known to them at the time of the erection of the building.

To have shown an estoppel it was essential for them to have proven that they were induced to erect the building by the conduct or language of their co-tenants in the easement in the alley. Here there was no inducement They were not misled. They acted with the full understanding of the rights of the other owners and of the limitations upon themselves. No defense, therefore, can be based on an estoppel. The judgment, if it can be sustained, must rest upon the fact of abandonment

The appellant challenges this finding on .the ground that it has no support in the evidence, and we are of that opinion.

The facts on which it rests are (1) that from 1846 to 1879, when it was torn down by the plaintiff, a gate was maintained .by the defendant and his grantors at the entrance to' the alley on Franklin street, (2) that as early as 1842 a brick building was erected on the lot No. 143, extending along the alley thirty-six feet deep, the easterly wall of which had no opening through which access could be had to the alley, and a high board fence without opening was maintained from the rear of the house to the end of the lot, thus shutting out the owners and occupants of that lot from the alley until 1879, when plaintiff opened a door through the fence. (3) That for forty years no taxes or assessments on the alley and no part of the expenses of paving or repairing had been paid by the owners of 143 and 145, but the same had been paid by the owners of defendant’s property. (4) That since 1842 the owners of 143 and 145 had made no use of the alley, but it had been exclusively used by defendant and his grantors. The last fact is of itself of no importance. Abandonment necessarily implies non-user, but non-user does not create abandonment no matter how long it continues. There must be found in the facts and circumstances connected with the non-user an intention on the part of the owner of the easement to give it up, but intention existing coupled with non-user will uphold a finding of abandonment. The evidence in this case is' substantially undisputed, and the question is do the facts I have referred to show an intention on the part of the plaintiff’s grantors to give up and abandon the easement. It is unnecessary to consider these facts in connection with Mrs. Harriott. Although she was the owner of No. 145, and may have intended to and did abandon any right she had in the alley as the owner of that lot, yet as to No. 143, she was but a life tenant, and no act of hers could prejudice or destroy the rights of the owners of the fee of that property unless done with their knowledge and approval.

The erection and maintenance of a gate at the entrance to the alley on Franklin street is not a fact indicating an intention with reference to the easement on the part of the owners of No. 143. It was not their act. It would appear to be important only in connection with an adverse claim or possession on the part of those who erected and maintained it. Abandonment of the easement is not inconsistent with entire and full recognition by the owners of defendant’s property of the rights and privileges of the owners of No. 143. But their exclusion from the alley would be a denial of their rights and could exist only in connection with a claim adverse to such owners. It does not appear that any of the owners of 143 were ever excluded from the alley or that any claim to the exclusive use by defendant or his grantors was ever made to or brought to their knowledge. But adverse possession, although alluded to in the special term opinion, needs no consideration, as it was not pleaded as a defense and no finding was made upon it and none was requested.

The fact of the existence of the gate is of no importance in the case as evidence of abandonment in the absence of evidence that it was used to exclude the owner of the adjoining property. It is not denied that no use was made of the alley by the owners of 143, and as long as there was no occasion on their part to use it, the mere existence of a gate was not notice of any adverse claim on the part of their co-tenants. Nor would acquiescence in its existence be prejudicial to their rights unless an adverse claim was brought to their knowledge. So long as it did not “hinder, obstruct or annoy others legally privileged to pass through the same,” it was not in violation of the terms upon which the easement was granted.

The erection of the house and fence without an opening on the east gives no indication of an intent to abandon the easement. It indicates no more than that the owner of 143 did not use the alley. Jt is evidence of non-user and nothing more. But the non-payment of taxes and repairs is an act of significance. Voluntary payment by defendant of course amounts to nothing, but if the failure to pay by plaintiff’s grantors was coupled with a refusal to pay on the ground that the easement was not desired, I think it would be sufficient to support a finding of an intent to abandon and give up the right

The owners of No. 143 must be deemed to have known that the privilege in the alley was subject to these payments; and if for a long term of years they refused to contribute, it would, in connection with the other facts, be strong evidence that the privilege was not desired and was given up. It would be no answer to this fact to say that they were liable under their deed, and could have been sued for half of the taxes and repairs. Perhaps such a suit could have been maintained against them, but certainly the other owners of the easement were not bound to sue them, and defendant has lost none of his rights by a failure to sue. If non-payment on the part of the owners of No. 143 is evidence of a surrender by them of the easement, the defendant may avail himself in this action of that defense. But the situation was somewhat peculiar. Mrs. Harriott, the widow, was the life tenant of No. 143. Her children had no right to the possession of the property until her death, and therefore no occasion to make use of the alley. She was bound to pay the taxes and repairs, and her children had a right to assume that she would do so. Her failure or refusal to pay the taxes could not, therefore, be regarded as a fact indicating any intention as to the easement on the part of her children, unless they knew of it and approved of it.

While it may be that the children were liable for a part of the expenses and taxes between themselves and the owner of the defendant’s property, between them and their mother, the life tenant, she was primarily bound to pay them, and they might assume that she would do so. Mrs. Harriott, as the owner of 145 and life tenant of 143, was bound to pay one-half, while her children were liable only for such proportion as was properly chargeable to Ho. 143.

How, it does not appear that any demand was ever made upon Mrs. Harriott’s children to pay their share of the expenses and taxes in the alley, nor does it appear that Mrs. Schilling or Frederick Harriott ever knew that their mother refused to pay them. The only evidence is that Smith Harriott was informed by his mother that she had been advised not to pay them, and that she did not pay them. But he was not charged with any duty in reference to the property by his brother and sister, and his knowledge then acquired cannot be imputed to them.

In the absence of any refusal on the part of the children to pay, the payment by defendant was voluntary and of course gives him no rights to the property. I think, therefore, that the children of Mrs. Harriott had a right to assume that their mother would pay these taxes and expenses, and in the absence of any evidence that they knew she had refused so to do, the mere fact of non-payment is no evidence that they intended to give up and abandon the use of the alley. j

Mrs. Harriott did not die until 1877, and-two years later her children conveyed Ho. 143 to plaintiff with the easement. As to Mrs. Schilling and Frederick Harriott there is no evidence to support the finding of the court

This conclusion leaves the case to rest entirely upon the fact of non-user. And the easement having been created- by deed, that is not, sufficient to sustain the finding that it had been given úp and was extinguished. A person who acquires title by deed to an easement appurtenant to land has the same right of property therein as he has in the land, and it is no more necessary that he should make use of it to maintain his title than it is that he should actually occupy or cultivate the land. Hence his title is not affected by hon-user, and unless there is shown against him some adverse possession or loss of title in some of the ways recognized by law, he may rely on the existence of his property with full assurance that when the occasion arises for its use and enjoyment he will find his rights therein absolute and unimpaired.

We do not deem it necessary to consider the question whether the plaintiff made out a case which would justify a court in adjudging that the building should be removed, or whether complete indemnity could be obtained by an award for the damages sustained. As a new trial must be had the evidence thereon may not be the same as is contained on the record before us, and should occasion arise for the consideration of that question the trial court is the proper tribunal to determine it in the first instance.

The judgment mnst be reversed and a new trial granted, with costs to abide the event.

All concur, except Follett, Ch. J., not voting.  