
    HEY et al. v. COLLMAN.
    (Supreme Court, Appellate Division, Second Department.
    January 16, 1903.)
    1. Right or Way—Prescription—Adverse User.
    Continuous, open, and exclusive user for all purposes of access to one’s farm of a way over another’s farm for twenty years, as of right, and not by virtue of a license, is sufficient, in the absence of objection or assertion of dominion, to establish the presumption that the user was adverse.
    S. Same—Lease—Prooe.
    That use by one of way began under a lease, and therefore Could not be adverse, is not established by the uncorroborated testimony of a witness that he showed him a lease, hut that he was “not close enough to read it.”
    8. Same—Recording Act—Protection against Prescriptive Way.
    One who purchases a farm is not protected by the recording act a'gainst a right of way by prescription along a road physically defined and apparent across it.
    If 3. See Easements, vol. 17, Cent. Dig. § 60.
    4. Estoppel.
    One is not estopped to claim, as against the purchaser at public sale of a farm, that be has a right of way across it, though he was at the sale, and made no claim to the way, there having been nothing said requiring him to speak.
    5. Harmless Error—Admission op Evidence.
    Erroneous admission of evidence may be deemed Unimportant, though it is made the basis of a finding, the finding being unnecessary to support the judgment..
    
      8. Same.
    There being unobjectionable evidence warranting the finding of the court in an action- to establish a right of way,—an equity case,—admission of evidence which might have been excluded is not ground for reversal.
    7. Right of Way—Obstruction—Damages.
    The measure of damages for obstruction of a right of way appurtenant to a farm is the difference in rental value of the farm with and without the way, though the farm is not rented.
    Appeal from special term.
    Action by John Hey and another" against Gerhard Coliman. From a judgment for plaintiffs, defendant appeals. Affirmed.
    Argued before GOODRICH, P. J., and BARTLETT, JENKS, WOODWARD, and HIRSCHBERG, JJ.
    Henry Bacon (John J. Beattie, on the brief), for appellant.
    M. N. Kane, for respondents.
   JENKS, J.

This is an action to establish a right of way appurtenant to the lands of the plaintiffs in a road over the lands of the defendant, and to recover damages for the obstruction thereof. The learned special term (Dickey, J., presiding), inter alia, found that from April, 1873, the plaintiffs had used the road continuously, uninterruptedly, and exclusively in reaching their farm, and that such use was open, notorious, uninterrupted, undisputed, under claim of right, and adverse to the predecessors in title of defendant’s land during all that time.

In Nicholls v. Wentworth, 100 N. Y. 455, 3 N. E. 482, the court say:

“The doctrine that the owner of one tenement may acquire an easement over the premises of another by the open, notorious, and adverse occupation thereof under a claim of right for a period of twenty years, is too well settled by the authorities to permit of any dispute.”

In Lewis v. Railroad Co., 162 N. Y. 202, 223, 56 N. E. 540, 546, the court, per Vann, J., say:

“Prescription rests upon the presumption of a lost deed, after adverse use and enjoyment for twenty years, which has been adopted by the courts as the prescriptive period from analogy to the statute of limitations.”

The evidence for the plaintiffs shows that their farm was distant half a mile from the highway, which was gained from this road over the lands of the defendant; that the plaintiffs have owned and occupied the farm since April 1, 1873; that the entire tract was formerly owned by Noble; that the road was part of an ancient road called the “Noble Forge Road,” which had been in existence and use for many years prior to 1873; and that the plaintiff and his family, since occupancy of the farm, had used the road continuously as the sole access, without interference or question, until the hindrance by the defendant now complained of. I think that from the facts the court was justified in its finding that the use was open, notorious, and adverse. Certainly the evidence warranted the finding that the user was open and notorious. And as to “adverse,” in Ward v. Warren, 82 N. Y. 265, the court, in speaking of the phrase that the user must have been with the “knowledge and acquiescence of the owner,” construes it as opposed to a use which is clandestine and by stealth. Moreover, the continuous, open, and exclusive user for all purposes of access for the period in question as- of right, and not by virtue of license, would seem sufficient, in the absence of objection or assertion of dominion, to establish the presumption that the user was adverse. Such use was the open and constant exercise of the very right which the plaintiffs claimed, and, in the absence of opposition or objection, the plaintiffs were not called upon to manifest any further evidence that their claim was adverse. Hammond v. Zehner, 21 N. Y. 118, 121; Washb. Easem. 156, 164. In Colburn v. Marsh, 68 Hun, 269, 272, 22 N. Y. Supp. 990, affirmed on opinion 144 N. Y. 657, 39 N. E. 857, the court say:

“We suppose It to be entirely settled as the law of this state that not only does the conclusive presumption of grant arise from the fact of open, notorious, uninterrupted, undisputed, and adverse user of such an easement, but that every user—in other respects answering the definition given—is presumed to have been under claim of title and adverse, and that the burden is upon the party alleging, that the user has been by virtue of a license or permission to prove that fact by affirmative evidence.”

Even if the presumption is not juris et de jure (see, in addition to Ward v. Warren, supra, Washb. Easem. 134; Parker v. Foote, 19 Wend. 309; Coolidge v. Learned, 8 Pick. 504; Lewis v. Railroad Co., 162 N. Y. 204, 56 N. E. 540), and rebuttable, the evidence of the defendant is not sufficient to warrant the disturbance of the decision of the learned special term.

The learned counsel for the plaintiffs contends that the use could not be adverse, because it began in license,—i. e., under a lease to a predecessor of the plaintiffs,—and continued thereunder. This proposition must be based upon the fact that such lease was established. Whether the lease ever existed depended upon the evidence of a single witness, who testified that such predecessor once showed him a lease, but that he was “not close enough to read it.” He is not corroborated in any respect.

The further contention that the defendant was protected under the recording act, under the rule of Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R. A. 667, cannot prevail in the face of the evidence that the road was physically defined—apparent—across the lands of the defendant. Lampman v. Milks, 21 N. Y. 505, 507. Taylor v. Millard, supra, dealt with a use that had no visible sign or existence, and nothing was apparent to a purchaser.

Nor are the plaintiffs estopped in that a witness testified that when the property of the defendant was sold to him at public vendue the plaintiff, John Hey, was present, and was not heard by the witness to make any claim to any right of way. On cross-examination that witness stated that all that occurred was that the property was put up and sold. The cases relied upon by the learned counsel for the appellant may be discriminated. In De Herques v. Marti, 85 N. Y. 609, the person estopped had formally declared that she did not own the house subsequently sold. In Trustees v. Smith, 118 N. Y. 634, 23 N. E. 1002, 7 L. R. A. 755, there were positive declarations by the trustees, and in Mattes v. Frankel, 157 N. Y. 603, 52 N. E. 585, 68 Am. St. Rep. 804, the vendor made affirmative representation as to the right of way. The quotation made by the learned counsel •from the last case is-from the dissenting opinion, and, moreover, is limited to the hypothesis that premises were offered for sale with a right of way. The objection taken to the testimony of statements made to the plaintiffs by Stephen A. Burt presents a more serious question. The testimony was to the effect that Burt, the predecessor of the defendant, said to the plaintiff that he might make all of the improvements to the road that he wished for his own convenience. But, even if the evidence was erroneously admitted, I think the judgment should stand. The learned counsel for the appellant submits that such testimony cannot be deemed unimportant, because it was made the basis of a finding that the public highway tax had, with the knowledge of defendant’s predecessor in title, been worked out upon this road instead of a highway. But I do not think that this finding was necessary to support the judgment. Further, the learned counsel says that “absolutely the only evidence of the knowledge of the predecessors in title is furnished by this testimony.” But the evidence was sufficient, for the reasons already stated, to warrant the'finding that the use of the way had been open, notorious, uninterrupted, undisputed, and adverse, and in such case the owner of the servient tenement is not permitted to defeat the easement by simply showing that he did not have knowledge of it. Ward v.- Warren, 82 N. Y. 268.

It is further objected that it was error to permit the plaintiffs to •prove that various other persons went over the road, because such •proof was inadmissible to establish the claim of the plaintiffs to a private way. Washburne, in his treatise on Easements (164), lays down the rule:

“If the way is used in common with others, it negatives the idea of a presumption in favor of an individual, and does not thereby establish a private way; though the right of way, as a private one, may be established by0 showing it to be public, since the latter embraces the former.”

I think that there is evidence which is unobjectionable which warrants the finding of the court, and as to testimony which might have been properly excluded the rule is that in an equity case the court -will not regard an exception which does not affect the merits. Townsend v. Bell, 167 N. Y. 462, 470, 60 N. E. 757.

The objection that the court could not award damages for the time that the road was entirely obstructed, based upon a comparison of the rental values of the farm with the road of access and without it, during the period of obstruction, because the property had not been rented, is not well taken. Mortimer v. Railroad Co. (Super. Ct. N. Y.) 8 N. Y. Supp. 536, 538, affirmed 129 N. Y. 81, 29 N. E. 5.

The judgment should be affirmed, with costs. All concur.  