
    HINCKEL v. STEVENS.
    (Supreme Court, Appellate Division, Third Department.
    November 16, 1898.)
    1. Easement—Taking Ice—Acquirement.
    The right to take ice from a creek is a property right, that may be acquired by grant or prescription.
    S3. Same.
    ■ Where for more than 20 years the owners and tenants of land bordering .a creek, title to the bed of which was in the owners of adjoining premises, annually took ice therefrom sufficient to fill an ice house on their premises, under an undisputed claim of right, and thereafter did nothing to indicate á surrender of the privilege, it entitled the owners to an easement of annually taking ice from the stream sufficient to fill the ice house on their premises.
    3. Deed—Reservation.
    A reservation in a deed of title to the bed of a creek is not inconsistent with the right to take ice therefrom.
    4. Covenant not to Trespass.
    A grantee’s covenant not to trespass on adjacent lands of his grantor does not run with the land.
    5. Easement—Acquirement by Prescription.
    An easement may be acquired by prescription, notwithstanding the use is continued in violation of an express covenant.
    Appeal from trial term, Albany county.
    Action by Frederick Hinckel against Jennie B. Stevens to enjoin ■defendant from taking ice from a stream on plaintiff’s premises, and from interfering with plaintiff’s taking it therefrom. From a judgment for plaintiff, defendant appeals.
    Reversed.
    Argued before PARKER, P. J., and LAND OH, HERRICK, PUT-HAM, and MERWIH, JJ.
    Ward & Cameron (Marcus T. Hun, of counsel), for appellant.
    Scherer & Downs, for respondent.
   PARKER, P. J.

It is clear that the paper title to the bed of the creek in question was in the plaintiff. Upon this appeal that fact is not seriously controverted. I also concur with the trial judge that no title thereto by adverse user has been established by the defendant. The defendant therefore has not justified her acts in entering upon the creek when frozen over, and excluding the plaintiff and his servants from cutting ice thereon. But the defendant claims that, even though she has established no title to the bed of the creek, and no right to utterly exclude the plaintiff from taking ice therefrom, yet she has shown a right, acquired by prescription, to cut and take as much ice from such creek as is required for her own use upon her adjacent lands, and that, therefore, the judgment in •this case, in so far as it restrains her from exercising that right, is erroneous.

The right to enter upon premises and take ice which forms thereon Is, in my opinion, a property right, that may be acquired by grant (Huntington v. Asher, 96 N. Y. 604), or by prescription, which presumes a grant (Parker v. Foote, 19 Wend. 309). Whether the defendant had established such a right was not decided by the trial ■court. The finding of facts does not contain any decision upon that precise question. It goes only to the extent of deciding that the possession or user which defendant had of the bed of the stream was not sufficient to establish an adverse title thereto; but it does not pass at all upon the question whether she and her grantors had or had not, by adverse user, acquired the right to take ice therefrom for her own use. The right to so take ice is in its nature an incorporeal hereditament, like an easement, or profits á prendre; and the facts necessary to acquire such a right by adverse user would be quite different from those which would be necessary to establish, an adverse possession of the bed of the stream. While I am clear that no such adverse possession or user was shown as would give her a title to the bed of the stream, I am inclined to think that she did show sufficient facts to establish her right to annually take ice therefrom sufficient to fill her own ice house. There, being no finding or request to find on that, question, this court must find in the record sufficient evidence to sustain the defendant’s claim in this respect; otherwise the judgment as entered must be affirmed.

It fairly appears from .the evidence that for a period extending from 1844 to 1877 the parties owning the premises which the defendant now owns, and through whom she obtained her title, annually took ice from the stream opposite such premises sufficient to fill their ice house thereon, and that such ice was used by them or by their tenants upon such premises. Subsequent to 1877, and after the Hinckels obtained the title to the stream, it seems that they ceased taking the ice from the stream, and some arrangement appears to . have been made with the Hinckels by which they took ice from the dock. It cannot, therefore, be said that after that date their taking of ice from the stream was a continuous user. But, if a grant is to be presumed by the user which existed from 1844 to 1877, then the rights acquired by such grant were-not lost. Their acts subsequent to 1877 were not a continuation of their user prior to that date, nor were they so continuous that they could constitute the basis of an adverse user. But neither were they operative to annul a grant that we might presume had already been acquired. Sherman v. Kane, 86 N. Y. 57. So the question is presented whether such taking of ice for the period above stated, by the predecessors in title of this defendant, raises the presumption of the grant of an easement, or of profits h prendre, appurtenant to the premises, which has passed with the premises to this defendant. When the right of profits h prendre belongs to an individual, "distinct from ownership in other lands, it takes the character of an interest or estate in the land itself, rather than that of a proper easement. It is then termed “profits h prendre in gross.” But, when the right is enjoyed by reason of holding a certain other estate, it is regarded in the light of an easement appurtenant to such estate. 19 Am. & Eng. Enc. Law, p. 260; Pierce v. Keator, 70 N. Y. 419, 421, 422. Assuming, as I think we may, that this right to take ice is that of profits ii prendre, it may also be conceded that, if it has been acquired at all, it has been acquired by reason of the ownership of the lands which were adjacent to the stream, and for the benefit of which the ice was taken. The evidence is that the ice house on such premises was annually filled1. The right actually exercised was the filling annually of the ice house on those premises, by those living thereon, and for their use. And the claim to so take the ice doubtless arose, as shown hereafter, from the fact that such premises were supposed to extend to the center of the stream. The grant to be presumed, if any, would be a' grant to that extent and for that purpose only. It would not be in the nature of profits & prendre in gross, but as one appurtenant to the premises of those who took the ice, and on which it was stored and used. It was in the nature of an easement, .then, annexed to the premises, and passing with them to this defendant. A right by prescription is acquired when an open, uninterrupted, and continubiis user for more than 20 years of an easement upon another’s land is had under a claim of right adverse to such other’s title, and when such claim has been acquiesced in by the owner of the servient tenement. Bushey v. Santiff, 86 Hun, 384, 33 N. Y. Supp. 473, and cases there cited. After such a user for such a period, the conclusive presumption of a grant arises. Ward v. Warren, 82 N. Y. 265, 268. The taking of ice which the owners of the Hun farm, now owned *by the defendant, had annually enjoyed from 1844 to 1877, was clearly open and notorious. It was also continuous, within the meaning of the above rule; for although exercised only at one season of the year, and long periods of time in each year passed without its exercise, nevertheless it was exercised in each year whenever the condition of the stream permitted. It was the only user which was necessary or possible to secure the benefits desired. It was as continuous as the nature of the right claimed permitted, and therefore it was sufficiently continuous to create the basis of a prescriptive right to take and enjoy that benefit. That during such period such user was uninterrupted and undisputed, also appears. That it was under a claim of right, adverse to the title of the owners of the stream, fairly appears from the following facts: Thomas and Elizabeth Hun took 352.6 acres of land under a perpetual lease from Stephen VanRensselaer; the stream and its bed, and the right to build a dam there, and flood lands thereby, and build a mill, being reserved to their grantor. Such reserved rights, and also the rents reserved in such lease, passed from Stephen to Philip Van Rensselaer. The Huns conveyed such tract, or some portion thereof (but just how much or what part this record does not disclose to us), in November, 1831, to Robert Boyd; and the defendant herein, through several mesne conveyances, has acquired the premises so conveyed to Boyd. It is apparent that such premises abutted on the Normanskill, and the-deed to Boyd, and all subsequent conveyances, described them as extending to the center of the stream as it winds and turns. Such premises in 1844 were owned by Ambrose Spencer; Mrs. Laura S. T. Walsh, who subsequently acquired his title, then living thereon with him. Ice was then taken from the creek to fill the ice house on the premises, and continued to be up to the time Mrs. Walsh’s title passed, in 1863, to Mrs. Brooks, and thence continuously while Mrs* Brooks had the title up to at least 1877. The deeds of these several owners assumed to convey to the middle of the stream, and, although ineffectual to convey the title beyond the- bank of the stream, they might be used as the basis of a claim to take ice from the stream. In 1850 Philip Van Eensselaer, who then owned the stream and its bed, as above stated, conveyed all his rights therein to Congdon, and in such deed inserted the following condition:

“Provided now and ever, and this grant is upon this condition .and restriction, that it shall not be construed or held to conflict or interfere with the right to the free use of the Normanskill as now .used or enjoyed by the parties of the first part and their assigns, or their tenant, Nathaniel Sawyer, on the land of the farm leased as aforesaid to Thomas and Elizabeth Hun.”

It is not entirely clear to what use of the Normanskill this condition refers, but it is apparent therefrom that to some extent, at least, the tenants on the land leased to Hun were exercising a right to the waters of the creek; and, inasmuch as it very clearly appears that at that date those occupying the premises in question had for years been annually taking ice therefrom, and occupying under deeds assuming to convey to the center of the stream, and it not appearing that any one on the Hun premises made any other use whatever of such waters, it is a fair inference that the taking of such ice was done under a claim of right so to do. I am not to be understood as deciding •that such provision in the Congdon deed grants or reserves to the Huns or to any of their grantees any 'rights whatever in the ice or waters of the stream; but I refer to it as a fact which to some extent indicates and suggests that whatever use the tenants on the Hun premises made of the stream was made as a right, rather than by mere permission. From all the facts, as they appear in the case, it is a fair conclusion that the taking of ice during the period above stated, by the defendant’s predecessors in title, was commenced because of the description of their deeds taking them to the middle of the stream, and continued under a claim of right which was in fact adverse to the title of its owners. The use of an easement for 20 years, unexplained, will be presumed to be under a claim or assertion of right, and adverse, and not by the leave or favor of the owner. Miller v. Garlock, 8 Barb. 153. See, also, Colburn v. Marsh, 68 Hun, 269, 272, 22 N. Y. Supp. 990; Nicholls v. Wentworth, 100 N. Y. 455, 461, 3 N. E. 482; Treadwell v. Inslee, 120 N. Y. 459; 24 N. E. 651. It seems, therefore, that during the period above stated the defendant’s predecessors in title did all the acts necessary to acquire by prescription a right, in the nature of an easement appurtenant to their premises, to take ice from the Normanskill for the use of the owners thereof.

The claim that the conveyances under which the defendant and .her predecessors took title to her premises operated to prevent her acquiring such a right by prescription cannot be sustained. There is a recitation in the conveyance to Spencer to the effect that it was made subject to all the “conditions, provisos, and restrictions” in the said lease to the Huns; and a similar recitation was also in the conveyance from Hun to Boyd, and from Boyd to L’Amoreaux, who conveyed to Spencer. The only conditions, provisos, and restrictions which can be found in that lease refer to the title which Van Eensselaer reserved in the stream, etc.; and that such title was still in Van Eensselaer and his grantees is not at all inconsistent with a right to take ice from the stream. A right by profits k prendre presupposes that the title to the land is in another, and an admission that such other has such title is not a concession that no profits h prendre exist thereon. Hence it can hardly be said that Spencer and Ms grantees, by reason of such recitation in their deeds, have admitted that no such right existed as against Van Eensselaer’s title.

In the lease to the Huns there was a covenant to the effect that neither they nor their grantees would in any manner interfere with the full enjoyment of all the rights, etc., by Van Bensselaer therein reserved; and the conveyances to Boyd and to L’Amoreaux contain a recital that they are taken subject to the covenants, as well as the conditions, etc., in that lease. In the conveyance to Spencer, however, no reference to the covenants in such lease is made. It seems to me clear that such a covenant is a personal one, and that it does not run with the land. It was not obligatory upon Spencer or any of his grantees. Such a covenant is quite different from one to the effect that the land conveyed shall be used only in a particular manner, or from a covenant which in any manner restricts the use of the land granted. A covenant that the grantee will not trespass upon the adjacent lands of the grantor will not be obligatory upon his grantee, nor follow the premises in the possession of all subsequent grantees. Moreover, I am not prepared to say that one who covenants not to interfere with the use of his neighbor’s land may not acquire an easement thereon by prescription. If he persistently breaks such covenant, and openly and notoriously claims and uses such easement, and the neighbor acquiesces therein for 20 years, why should not a grant be presumed, as much as if no such covenant existed? It is the acquiescence in the hostile claim that raises the presumption, and the existence of the covenant does not excuse or prevent the covenantee from resisting such hostile claim. Nor is there any equity which should prevent the covenantor from setting up such a presumed grant. With or without a covenant, the right by prescription is founded upon a long-continued invasion of another’s rights. In either event it is the result of a wrongful act. If, however, the one injured acquiesces in it for 20 years, the law arbitrarily, but for the sake of peace, assumes that there was a grant, and therefore no wrong. Whether the adverse user commences in violation of a covenant, or merely in violation of another’s rights without a covenant, is of no consequence, so long as the injured party has for 20 years acquiesced therein.

I conclude, therefore, that this defendant has the right to take ice from the stream opposite her premises, for the purpose of her own use thereon, and that the provision of the judgment which enjoins her from so doing is erroneous. If this question had been passed upon by the trial court, I should be inclined to correct such error by modifying the judgment; but, inasmuch as it seems to have been tried and decided upon the question of title to the bed of the stream, alone, I think that both parties should have another opportunity to retry the questions of fact upon which this conclusion is reached.

Judgment reversed and new trial granted; costs to abide the event. All concur.  