
    William F. Taylor, Resp’t, v. Elijah J. Millard, App’lt.
    
      (Court of Appeals, Second Division,
    
    
      Filed January 14, 1890.)
    
    1. Easement—Cannot be cheated by fabol agbeement fob pabtition.
    A right in the nature of an easement cannot he created by a paroi agreement for the partition of lands, because that involves something besides a severance of the unity of possession.
    
      1 Affirming 4 N. Y. State Rep., 826.
    8. Same—Pabol license to take apples.
    The right to enter and take away apples, if merely a paroi license, is revocable at pleasure, and if not a paroi license if requires a grant duly placed upon record in order to he valid against one purchasing in reliance upon the recording act.
    Appeal from a judgment of the general term of the supreme court in the third judicial department, affirming a judgment of the county court of Rensselaer county, entered upon the decision of the county judge.
    This is an action of trespass brought in the county court, after a suit for the same cause of action, commenced in justices’ court, had been discontinued because a plea of title was interposed by the defendant.
    The county judge found as facts that from 1836 to 1850 two brothers named John and Elijah Millard owned as tenants in common a farm of about 170 acres in Rensselaer county upon which there was an apple orchard; that in 1850 they made a paroi partition of said farm by which John was to have 100 acres including the orchard, and Elijah the remaining seventy acres, and as part of the arrangement between them they made an oral agreement by which Elijah, his heirs and assigns, were to have the right to enter upon the part belonging to John and gather one-half of the apples growing or to grow in said orchard; that immediately after the paroi partition was made they took possession of their respective.portions of the farm and from that time they and their successors in title have continued to own and occupy the parts so allotted to them, respectively, without any claim of title being made by either to the land so owned and occupied by the other ; that in 1854 Elijah died leaving a last will and testament, oy the second clause of which he devised said seventy acres and the appurtenances to the defendant; that the sixth clause of said will is as follows:
    “ Sixth. I give and bequeath to Elijah J. Millard and to his heirs and assigns forever all my right, title and interest to the apples, growing or to grow in the premises now occupied by John Millard; ” that the defendant took possession of the seventy acres under the will and occupied them until September, 1861, when he conveyed them “ with the appurtenances ” to Mary E. Millard, by quit-claim deed, duly recorded, which made no mention of any right or supposed right to enter upon the hundred acres and gather one-half of the apples in the orchard thereon; that March 23, 1870, John Millard conveyed the hundred acres to one William A. Millard by warranty deed duly recorded two days later, and on March 25, 1880, said William A conveyed the same premises to the plaintiff by a like deed recorded the next day; that neither of these deeds contained any reference to a right, or supposed right, of the owner of the seventy acres to enter on the land thereby conveyed and gather apples, and that there is no evidence in the case that the plaintiff had notice of the existence of any such right or claim; that soon after plaintiff went into the possession of the hundred acres under said deed, and shortly before the commencement of this action the defendant, by direction of said Mary E. Millard, entered thereon and gathered apples from said orchard to the value of seven dollars, after he had been forbidden to do so by the plaintiff; that from the time of the paroi partition until the defendant was so forbidden by the plaintiff, Elijah Millard, and his successors in title to the seventy acres, had annually gathered apples from said orchard and had never before been prohibited.
    It was admitted by the parties, although not found as a fact, that twenty new trees were set out in the orchard after the paroi partition.
    The county judge found, as a conclusion of law, that the entry of the defendant on the lands of the plaintiff was without right, and that he was a trespasser in so doing, and judgment was directed against him for the sum of seven dollars on account of such trespass, besides costs.
    
      Henry L. Landon, for app’lt; J. M. Whitman, for resp’t.
   Vann, J.

It is not open to discussion in this state that a paroi partition may be made of lands owned by tenants in common, provided each party takes and retains exclusive possession of the portion allotted to him. Wood v. Fleet, 36 N. Y., 499 ; Mount v. Morton, 20 Barb., 123 ; Ryers v. Wheeler, 25 Wend., 434; Jackson v. Livingston, 7 id., 136; Jackson v. Christman, 4 id., 277 ; Jackson v. Vosburgh, 9 Johns., 270; Jackson v. Harder, 4id., 202; Freeman on Oo-tenancy & Partition, § 398; Knapp on Partition, § 465.

A tenancy in common exists when there is merely unity of possession, either with or without a union of other interests. The result of a paroi partition, when carried into effect by each tenant taking exclusive possession of his own share and surrendering possession of all the other shares, according to the allotment, is to destroy the unity of possession, and thus the parties, by their acts only, without a deed, cease to be tenants in common of the whole and each becomes the tenant in severalty of a part. The unity of possession is severed and the partition is effected by the acts of the parties in taking exclusive possession of their respective shares by common consent. While the form of the transaction is a paroi agreement followed by the act of taking exclusive possession, each of his part, the substance is the act itself. A paroi agreement simply cannot terminate the unity of possession. Standing alone it would be ineffectual for any purpose. The partition springs from the act of each tenant, with the consent of the others. Although practically a substitute for it is not equivalent to mutual conveyances, which would sever the unity of possession even if not followed by actual possession. ¡No title is transferred by a paroi partition, even when it is carried into effect, as it acts only upon the unity of possession and by ending that accomplishes the object in view. It ascertains and defines the limits of the respective possessions. Possession under a tenancy in common is per my and not per tout, and as each tenant owns an undivided fraction, he cannot know where that fraction is until a division has been made. 4 Kent., 367, 371; 2 Bl. Com., 191, 194. While his title remains the same after partition as it was before, his part is separated and identified by the division. Allnatt on Partition, 124, 129; Corbin v. Jackson, 14 Wend., 621, 625. It follows from these views, which are supported by the authorities already cited, that a right in the nature of an easement cannot be created by a paroi agreement for the partition of lands, because that involves something besides a severance of the unity of possession. It implies a grant, by which the right is either reserved or conveyed. Wiseman v. Luchsinger, 84 N. Y., 31. It is something carved out of one parcel of land, the servient, for the benefit of another, the dominant. “It is an interest in or over the soil,” and “can only be acquired by grant, and ordinarily by deed, * * * a paroi license being insufficient for the purpose.” Washburn on Easements, 3-7. Considering the nature of an easement and the means necessary to create it, we do not think that a right of that character was acquired by the owner of the seventy acres with reference to the remainder of the tract

If, by virtue of the paroi agreement, the right in question was to belong to Elijah Millard, as a personal interest independent of Ms ownership of the seventy acres, it was not an easement, proper, but an estate in the land itself. The right to take a part of the soil or produce of land, known as profit a prendre, requires a grant or prescription from which a grant is presumed. Pierce v. Keator, 70 N. Y., 419,422 ; Post v. Pearsall, 22 Wend., 425, 433; 2 Wash-bum on Real Property, 276, 338; Rapalje & Lawrence ¡Law Diet., title Profit. It is inconsistent with possession or ownership in severalty, which, is the sole and exact result of an effective paroi partition. When unity of ¡possession ends, possession in severalty begins and the partition is accomplished. It cannot fall short of this result, if it takes effect at all, and it cannot go beyond it.

If the right to enter and take away apples, as contended for, was merely a paroi license, it was revocable at pleasure and the conveyance of the 100 acres without reference thereto effected a revocation. Cronkhite v. Cronkhite, 94 N. Y., 323; Shepherd v. The McCalmont Oil Co., 38 Hun, 37; Washburn on Easements, 7.

But, whatever the nature of the right, as claimed, was, we agree with the learned general term that, as it was not, and could not be, made a matter of record, the recording act supervened and protected the plaintiff. Subsequent to the paroi partition the parcel of 100 acres was twice conveyed by deeds duly recorded, neither of which contained any reference to the right or claim in question. There was no visible sign of its existence and nothing apparent in the use or possession of either tenement to put a purchaser upon inquiry, while the record title contained no suggestion upon the subject. If the verbal agreement had not been limited simply to one-half of the apples, but had embraced one-half of all the annual products of the farm, it would have been the same in principle. Unless the right was a paroi license it required a grant, duly placed upon record in order to be valid against one purchasing in reliance upon the recording act. 4 B. S., 8th ed., 2469. The will of Elijah Millard was not constructive notice to the plaintiff because, aside from any other question, it was not recorded in the county clerk’s office, but in the surrogate’s office only. Section 2633 of the Code of Civil Procedure was not in force on the 26th day of March, 1880, when the plaintiff’s deed was recorded. Code Civil Procedure §§ 2633 and 3356.

We think that the judgment should be affirmed, with caste.

All concur, except Haight, J., not voting.  