
    Francis A. Foster, Plaintiff, v. The Village of South Glens Falls, Defendant.
    (Supreme Court, Saratoga Special Term,
    July, 1901.)
    Bight of pasturage — When it is a mere privilege.
    A clause contained in a deed giving the grantee a right to pasture certain lands of the grantor lying between the premises granted and the Hudson river, accompanied by a proviso that if, at any time, the grantee required a fence on those lands the right of pasturage should cease, is a license personal to the grantee and does not run with the lands.
    Whenever an easement or an appurtenance is not an essential and necessary adjunct to the lands conveyed its scope will be limited.
    Actioe to enforce an alleged right of pasturage.
    E. T. Brackett, for plaintiff.
    Ashley & Williams (T. W. McArthur and Henry W. Williams, of counsel), for defendant.
   Russell, J.

On the 10th day of September, 1867, James Morgan and others were owners of a farm of 180 acres in the town of Moreau, .Saratoga county, and of a strip of land, now partially occupied by the defendant for reservoir purposes, lying between the farm and the Hudson river. On that day the owners conveyed the farm to Martin Coffin, by deed, containing this= clause: With the right to pasture the lands between these premises and the river, but if at any time the party of the second part requires a fence on the lands the right of pasturing ceases.” Coffin after-wards conveyed to William Griffin and Griffin to Daniel T. Wetsel, both deeds containing the same reference to the right of pasturage. The plaintiff is the heir of Wetsel and claims that the defendant by increased flowage has seriously disturbed her right of pasturage, but does not claim that this flowage in any way extends upon the farm of which she became so possessed.

At the time of the deed to Coffin the pasturage was of some value to the adjacent farm, and the lands between it and the river of little worth, the herbage being then and since somewhat scanty, and the water of the river unnecessary as the farm was reasonably well supplied for that purpose. The parties contracted with reference to the situation as it then existed, and looking to the immediate future, without apparent thought as to what might be the legal rights of others taking adverse titles at a distant period to the two pieces of land, which might be useful and valuable for very different purposes beyond the contemplation of these dealing with each other in the year 1867. " The very terms of the reservation imply the personal character of the license, and negative the idea that the pasturage right would go, by conveyance of the farm to stranger hands, at a time when Coffin’s present occupation of the lands as a farm would have ceased forever. It was he who might require a fence, which was probable, if he allowed cattle to roam upon his farm so that they would not pass-to the other lands, and the suggestion of this cessation of the privilege indicates the indefinite character of the right, and its dependence upon the personal choice of Coffin himself, and not that of the future possessor of the farm lands which might be used for very different purposes. The fitful use of the lands between the farm and the river for pasturing, by those occupying the farm, indicates the small value placed upon the privilege, and the current acts of the owners of the farm from 1867 to 1894 tends to confirm the theory that it was not intended as a permanent grant of an appurtenant use of the other lands.

The^ theory of the law forbids the unlimited suspension of title to an interest in lands, and construes the terms of a grant in conformity with such theory. Wherever an easement or' an appurtenant is not an essential and necessary adjunct to lands conveyed, its scope will be limited. Hence a reservation, that the grantor should have the privilege of mowing and cultivating the surplus ground of a strip of ground not required for railroad purposes, was held to be reserved to the grantor personally and not as owner of the farm. Pierce v. Keator, 70 N. Y. 419.

A covenant not to permit a-grist mill to be erected does not run with the land but is a personal contract only. Harsh a v. Reid, 45 N. Y. 415.

The surrounding circumstances, the situation of the parties and the subject of the contract guide in the determination of the intention of the parties in the conveyance of lands. French v. Carhart, 1 N. Y. 96.

I am of the opinion that the grantors Morgan and others did not intend to convey to Coffin, in addition to the farm, a perpetual encumbrance upon their other lands, and that the language of the privilege granted did not go beyond their real intent.

Judgment for defendant, with costs.  