
    Hoch et al. v. Manhattan Ry. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    March 13, 1891.)
    1. Railways in Street—Rights of Abutting Owners—Abandonment of Easement.
    In an action for damages and an injunction upon the ground of trespass by defendants on easements appurtenant to real property of plaintiff by the construction of their elevated railroad in the street in front thereof, it appeared that the railroad was constructed and operated by virtue of some license or authority derived from plaintiff’s predecessor in title, and that the latter’s deed to plaintiff conveyed the premises “in the condition in which the same now are;’’the railroad then being constructed, and the easements appropriated. Held, that there had been an abandonment of such easements by the former owner, which, having been acted on by defendants, was irrevocable, and plaintiff could not recover. Distinguishing Wise-man v. Lucksinger, 84 N. Y. 3S.
    2. Same—Permanent Damages.
    Before the purchase by plaintiff of certain real property his vendor had sued defendants for the permanent depreciation thereof caused by defendants’ elevated railroad; and her deed to plaintiff contained a reservation of any rights of action for damages caused by the railroad prior to or during her ownership of the premises. At the trial of her action, the court refused to submit to the jury the question of permanent damages. Held, that plaintiff was not precluded from maintaining an' action for damages and an injunction against defendants on the ground of trespass on easements appurtenant to the property.
    Appeal from special term, New York county.
    Action by Anna Maria Hoch and others, individually and as executrices and trustees under the will of John C. Hoch, deceased, against the Manhattan Railway Company and the Metropolitan Elevated Bailway Company. Defendants appeal from a judgment for plaintiffs entered on trial by the court without a jury.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Davies c6 Rapallo, (Julien T. Davies, Brainard Tolies, and Alexander S. Lyman, of counsel,) for appellants. Peekham & Tyler, (E. W. Tyler, of counsel,) for respondents.
   "Van Brunt, P. J.

This action was begun in 1888 by John C. Hoch to recover past damages and to obtain an injunction as to the property 133 South Fifth avenue, upon the ground of the trespass of the defendants upon the easements appurtenant thereto. It appeared from the evidence in the case that Hoch purchased the premises in question in December, 1883, his grantor conveying the premises “in the condition in which the same now are;” and the court found that the defendants’ railroad was constructed, maintained, and operated by virtue of some estate, license, or authority derived from the plaintiff’s predecessor in title. Past damages and inj unction were also sought for the premises No. 104 West Third street, also purchased by the plaintiff in December, 1887. The plaintiff tore down an old building which was upon the premises, and in May, 1888, began the erection of a five-story tenement-house which was completed by the 1st of November, 1888. His grantor, Margaret D. Griswold, had commenced an action against the defendants to recover the permanent depreciation caused to these premises by the railroad; and her deed contained a reservation of any rights or action at law or in equity for damages caused by the railroad prior to or during her ownership of said premises. Hoch having died during the progress of the action, the present plaintiffs, individually and as executrices and trustees under the will of Hoch, were by order substituted as plaintiffs, and the action revived. The court held as to both pieces of property that the plaintiffs were entitled to recover for past damage, and also assessed a sum upon the payment of which the defendant should be entitled to a conveyance of the easements and avoid the injunction,, in default of which it was decided that the plaintiffs were entitled to.

The first question presented is that there can be no recovery of past damages, and no injunction as to 133 South Fifth avenue, the court having found that the erection of the defendants’ railroad was duly licensed and authorized by the then owner of said premises. This point, we think, is well taken. It appears by the conveyance to Hoch that the said premises were conveyed in the condition in which they then were,—with the railroad constructed, and the easements appropriated. Such a deed conveys every easement appurtenant to the premises conveyed which the grantor owned or was entitled to recover, as easements always follow the principal estate. 2 Hil. Beal Prop. (3d Ed.) 336; Huttemeier v. Albro, 18 N. Y. 48; Hills v. Miller, 3 Paige, 254. Consequently, if nothing had been done by the original plaintiff’s predecessor to effect his claim to such easement, it clearly passed with the conveyance to him, as appurtenant to the estate conveyed. But the court having found that the defendants’ railroad was constructed, maintained, and operated by virtue of some estate, license, or authority derived from the original plaintiff’s predecessor in title, there appears to have been an abandonment of such easement by the owner of the title for the purposes of the construction of the defendants’ railroad. And that the right to an easement may be lost and extinguished by abandonment is held in the case of Snell v. Levitt, 110 N. Y. 595, 18 N. E. Rep. 370, in which the principle is laid down that, while an easement acquired by grant cannot be lost by mere non-user for any length of time, it may be extinguished by abandonment and non-user for a period of 20 years, under circumstances showing an intention to surrender the easement, is sufficient to extinguish it; and the further principle is laid down that, where the abandonment has been acted upon by the owner of the servient tenement, so that it would work harm to him if the easement were thereafter asserted, such action will operate to extinguish it. In the case at bar, it having been found that the defendants’ railroad was constructed by virtue of a license from the original plaintiff’s predecessor in title, so far as it affected these easements, it was clearly an abandonment by the owner of such easements which has been acted upon by the defendants, and was therefore a license which was irrevocable. It is true that in the case of Wiseman v. Lucksinger, 84 N. Y. 38, it was held that a right of drainage through the lands of another is an easement which, if created by paroi license, may be revoked at any time, although a valuable consideration be paid therefor; but that decision was clearly based upon the principle that such an easement required for its enjoyment an interest in the lands which could not be conferred by paroi license, and could only be granted by deed or conveyance in writing. The defendants are not seeking, by reason of this license, to establish any interest in lands. All that they claim is that, so far as is necessary for the operation of their railroad, there has been an abandonment of the easement appurtenant to the premises in question by the then owner thereof, and that they have acted upon the same. Under these circumstances it seems to be clear that the right of revocation does not exist. It may be true that error was committed in admitting the evidence tending to interpret the language of the deed given of the premises in question; but a further reference to this point is not deemed necessary, in view of the conclusion to which we have come upon the question already discussed. The claim that the defendants’ railroad is located on the central strip of South Fifth avenue, and that no rights of the plaintiffs are interfered with, cannot be sustained in view of the recent decisions of the court of appeals as to the rights of abutting owners upon side streets. The claim that the reservation in the deed in respect to the West Third street property precluded the plaintiffs from maintaining this action as to these premises cannot be sustained. Although the parties may have agreed that the permanent damages might be considered in the action brought by the previous owner, yet, the court having refused to submit any such question to the jury, and no such question having been submitted to them, it is difficult to see how anybody’s rights were precluded by a verdict in an action upon an issue which the record shows the court never submitted to the jury. The parties stood, after this trial, precisely as though there had been no attempt to include permanent damages as part of the recovery in the action. Various exceptions to the admissibility of evidence were taken, which it is not necessary to discuss, in view of the conclusion at which we have arrived in reference to the South Fifth avenue property. We think, for the errors adverted to in respect to that property, the judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.  