
    HILL v. BARTHOLOMEW.
    (Supreme Court, General Term, Fourth Department.
    September, 1893.)
    When Tbespass Lies—Bbeach op Covenant.
    Where a landowner grants to another a right of way over his land, and the grantee agrees to maintain gates at each end of the way, and keep them closed except when passing through them, the latter is not liable to an action of trespass by the farmer’s grantee for willfully leaving one of such gates open when using such way, so that plaintiff’s stock escaped into the public highway, but plaintiff’s remedy is for damages for breach of covenant.
    Appeal from circuit court, Otsego county.
    
      Action by Barnet Hill against James Bartholomew for trespass on certain real estate. From a judgment for defendant, plaintiff appeals.
    Affirmed.
    The action, was first brought in justice’s court. A plea of title was put in, and the action then was brought in the supreme court. In the complaint it is alleged that the defendant at various times during the months of May and June, 1888, wrongfully went upon the lands and premises of the plaintiff, and wrongfully and willfully opened the gates and fences of plaintiff on piamtiirs premises, ana wrongrully and willfully left tne gates and fences open, and thereby exposed plaintiff’s crops, and caused plaintiff’s cattle to go out, and that in consequence thereof the plaintiff was put to great trouble and expense in looking after his cattle and in shutting his gates. In the answer it is, among other things, alleged that the defendant had a right of way across the plaintiff’s premises, and that all he did was in the exercise of this right, and that he had a right to have the gate open, and all other entries are denied.
    Argued before HABDIN, P. J., and MEBWIN and PABKEB, JJ.
    O. F. Matterson and Albert G. Tennant, for appellant.
    H. H. Harrington, for respondent.
   MEBWIN, J.

The controversy in this case is over the use of a right of way granted by Phineas Persons to the defendant on 17th July, 1869. Persons owned lands fronting upon a highway, and defendant owned lands in the rear. Thereupon Persons, for a consideration therein named, duly executed and delivered to defendant a deed by which he conveyed to defendant and to his heirs and assigns forever “a right of way in and over a strip of land on the north side of the dwelling house of said Persons, in said town of Pittsfield, for the use of the said party of the second part, his heirs and assigns, and his and their servants and tenants, in passing from the highway running past the house .of said Persons to the house of said Bartholomew, and from said house and premises of Bartholomew to said highway, said strip of land to be of the width of two rods, and commencing at the gate between the lands of said parties, and running westerly to said highway, passing over the same track heretofore used as a passageway by William Hamilton. Said Bartholomew and his heirs and assigns are to forever maintain a gate where the one now is on the the line between said parties, and another gate at the other end of said right of way, where the same intersects said highway, and keep the same closed, except when passing through same. Said Bartholomew to have the right to work said right of way so that it may be and remain in good traveling condition.” This instrument was duly recorded, and defendant immediately went into the occupancy of the right of way, and erected gates at each end thereof, and kept the same closed except when passing through the same, as required by said deed, until June 8, 1870. At that date Persons and defendant entered into an agreement in writing, signed by both, by which it was provided “that the gate at the road should be done away with as long as James Bartholomew makes and keeps in repair a line fence on the north side of the road that leads to the highway.” This agreement was not sealed, acknowledged, or witnessed, or recorded. The .gate mentioned in it is the gate mentioned in the deed of 1869 to be maintained where the way intersects the highway. Soon after this agreement was made, the defendant, in pursuance of it, erected a line fence upon the north side of the way, and kept and maintained it until the spring of 1888, when it was removed by the plaintiff, and during this time the defendant used the way without a gate at the highway. Persons died in December, 1879, being then the owner of the lands through which the right of way passed. In 1881 the plaintiff became the owner by purchase at a partition sale in an action brought by the heirs of Persons for partition. The deed to plaintiff contains the clause, “subject to the right of way across the same, as deeded by Phineas Persons to James Bartholomew.” From this titne until the spring of 1888 the use by defendant of his right of way without a gate at the highway was with the knowledge and consent of plaintiff. In the spring of 1888 the plaintiff, for his own convenience,. and without the consent of defendant, removed the fence on the north side of the way, and erected a gate at the highway, and closed the same. The defendant thereafter at divers times, as he opened the gate in passing from his farm to the highway and back, did not close it, and these are the same occasions referred to in the complaint. The defendant claimed he had the right to have the gate open or done away with under the agreement of 1870. As to this agreement the plaintiff claims that, as it was not attested or acknowledged, it was invalid as to him. 4 Rev. St. (8th Ed.) p. 2451, § 137. He was a purchaser from the heirs of Persons. In Strough v. Wilder, 119 N. Y. 530, 23 N. E. Rep. 1057, it'is said, and seems to have been held, that the title under an unacknowledged and unattested deed is good as between the parties, and also against the heirs of the grantor, or one claiming under them. The plaintiff also claims that he had no notice of the agreement of 1870, and should not be bound by it; and, also, that it was revocable. It is found by the court below that the plaintiff when he purchased did not have any notice, knowledge, or information of the agreement of 1870, or of any easement except as specified in his deed. He, however, knew that 'the right of way was in use without any gate at the highway, and that this was a change from the original instrument, the contents of which he is presumed to have known. Whether the circumstances were such as to put the plaintiff on inquiry, or. whether the agreement was revocable, are, however, questions not necessary now to determine. There is another question that seems to be fatal to the present action. This action is in trespass, and the gist of it is the alleged wrongful entry. The other averments are in aggravation of the wrongful entry, and relate to the matter of damages. Whatling v. Hash, 41 Hun, 580, and cases cited. The action is in tort, and is not on contract. Ho wrongful entry by the defendant is shown. He had a right to pass over the right ■of way; had a right to open the gate. The fault, if any, upon Ms part was Ms omission to close the gate. An act of omission will not make a man a trespasser ah initia. Adams v. Rivers, 11 Barb. 390; Hale v. Clark, 19 Wend. 498. It is found by the court below that the defendant opened the gate, and intentionally and willfully left it open, thereby letting plaintiff's cattle into the street, and causing him trouble. It is not, however, found that the defendant at any time opened the gate when not in the exercise of his right of way under his deed. He testifies that he never opened it except when he was exercising his right of passage. He left it open because he supposed he had a right to have it open. If the plaintiff is correct in his theory that the agreement of 1870 is invalid and inoperative as against him, then defendant, under the covenant in the deed of 1869, which inured for the benefit of plaintiff, would be liable for leaving the gate open. An action for damages for breach of the covenant would lie, as in the case of Beach v. Crain, 2 N. Y. 86. But that is not this action. It follows that the court below was correct in holding that the defendant did not wrongfully enter or trespass upon the lands of the plaintiff, and that the plaintiff’s complaint was not proven.

Judgment affirmed, with costs. All concur.  