
    Oren G. Staples, Appellant, v. Andrew C. Cornwall and Others, Respondents.
    Fourth Department,
    July 12, 1906.
    Real property — when right of way over bridge not obtained by adverse user —when no right of way by necessity— complaint alleging adverse user—when plaintiff not entitled to show way by necessity— evidence insufficient to establish way by necessity.
    A grantee does not acquire a right of way by adverse user over a bridge wholly upon the grantor’s land when the proof shows that the original use of the bridge was under a license given by the grantor and revocable at will.
    If a right of way exists by necessity, as where an owner conveys lands to which access can be had only over other lands of the grantor, such way, even if used under a license from the grantor, cannot be extinguished by a revocation of the license. But a grantee, in order to establish a right of way by necessity, must allege and prove that the way exists by necessity, and such proof is not admissible when the c.omplaint only alleges title by adverse user.
    Moreover, when it is shown that the grantee, who maintains a hotel facing the water, has access to the water by other ways than over a bridge on his grantor’s land leading to a dock owned by the grantor, a right of way by necessity over such bridge is not established. A grantee who claims that other ways of access to the water are private and not open to him must prove that they are private. The burden of showing that they are public is not upon the grantor.
    The mere fact that a way is more convenient than other ways does not establish a way by necessity. .
    The fact that the grantee, by building a dock on his own land, may gain access to the water should be considered in determining whether a way leading to the* water over the lands of another is a way by necessity.
    Appeal by the plaintiff, Oren Gr. Staples, from a judgment of the Supreme Court in favor of the defendants, entered in the office of the cleric of the county of Jefferson on the 15th day of August, 1905, upon the report of a referee dismissing the complaint herein.
    The action was commenced in March, 1902, for the purpose of obtaining a permanent injunction restraining the defendants from removing a bridge leading from defendants’ dock to plaintiff’s hotel, located at the village of Alexandria Bay, Jefferson county, R. Y.
    
      Joseph Atwell, for the appellant.
    
      Henry Purcell, for the respondents.
   McLennan, P. J. :

The plaintiff is the owner of the Thousand Island House, erected in 1873 at Alexandria Bay, K". Y., ata cost of upwards of $100,000. It is a large summer hotel, equipped with modem improvements, and each season accommodates a large number of transient guests and regular boarders visiting the upper St. Lawrence river. The premises upon which the hotel is situated were conveyed by plaintiff’s grantors upon condition that the grantee would erect a hotel thereon, the grantors at the time being the owners of a public dock and other property upon the river front, and the most suitable and convenient means of access to such hotel from the dock of the defendants was by means of the bridge in question. At the time, or shortly after the hotel was erected, a broad walk was constructed leading from the front entrance of the hotel to a slip or bay at the end of the defendants’ dock, and which was on the boundary line between the premises conveyed to the plaintiff and that retained by the defendants. From such walk and across such slip the plaintiff constructed a bridge which led directly to the dock referred to, and practically all of which was upon defendants’ premises. The bridge constituted a continuation of the walk, and ever since its construction, has been constantly used by guests of the hotel going to and from it to defendants’ public dock. The plaintiff claimed upon the trial of the action that he and his grantors had acquired the right to maintain such bridge by adverse possession; that it was constructed in 1873 or soon thereafter under claim of right, and that it has ever since been thus maintained. The referee found that it was constructed and maintained ■ under a license from the defendants or their predecessors in interest, and that, therefore, the plaintiff did not and could not acquire title to the same, and that such license was revocable at the will of the defendants. The evidence upon that issue is conflicting, and we do not think that the finding of the referee in that regard should be set aside as being against the weight of the evidence. If such finding of fact be accepted, the law is well settled that the plaintiff could not acquire title by adverse possession. It, however, is also claimed by the plaintiff that the evidence establishes that the plaintiff has acquired the right to maintain and continue the use of the bridge in question as a way of necessity.

If the way over such bridge originally constituted a way of necessity, the fact that it has been maintained and used all these years under a license by the grantors, which was revocable at theii will, would not preclude the grantee, when such license was revoked, from insisting upon his right to a way of necessity, the same as if the license had not been given. If this were not so, an owner of certain lands might grant to another a part of the same entirely surrounded by the.land of such grantor, and then permit the grantee by license to use a certain way accessible and convenient to such lands, then revoke such license and thus preclude his grantee from ingress or egress to the lands purchased. The difficulty with the contention on the part of the plaintiff, that he is entitled to succeed in this action because entitled to a way of necessity over and upon the bridge in question, is that the complaint contains no appropriate allegation raising such issue, and no proof was introduced by the plaintiff to support the same. As we have seen, the action was brought to procure a determination that the plaintiff by adverse user under a claim of right had acquired the right to the maintenance and uninterrupted, use of the bridge in question. The learned referee has found that such bridge was not erected and has not been used under a claim of right by the plaintiff adverse to the defendants, but under a license granted by such defendants, which Avas revocable at will; and we think the evidence fairly justifies such finding. We think also that the evidence wholly fails to prove that the bridge in question or the way leading across it constituted a Avay of necessity. In the 13th finding of fact the referee found that there were two other well-defined ways leading to plaintiff’s property, which ways are designated upon a map received in evidence, without objection, as a road and street respectively. It is, however, urged by appellant’s counsel that there is no proof that such road or street Avere public highways, and such as to entitle the plaintiff to use the same.

There is no proof that they are not public highways, and the burden- of proving that fact Avas upon the plaintiff Avhen seeking to establish a way of necessity.

The plaintiff established by an abundance of evidence that the way leading across the bridge in question was by far the most suitable and convenient to the use of his hotel, and it is apparent that the plaintiff’s property will be very greatly depreciated in value if deprived of the right to use such way and to cross the bridge in question. But such fact does not entitle the plaintiff to a judgment establishing such way as a way of necessity.

Further, it may be said that it appears without contradiction that the plaintiff’s property fronts upon the St. Lawrence river, which is a public highway, and may be made as accessible by the expenditure of a reasonable amount of money as is the property or dock of the defendants, which fact we think it proper to consider in determining whether or not the plaintiff is entitled to the use of a way over the defendants’ property leading across the bridge in question as a way of necessity.

We have searched the record in vain for evidence which would justify this court in reversing the finding of fact made by the referee that “ The bridge was originally erected by the plaintiff by and with the parol consent and permission of, and under a license from, the owners of the lands now owned by the defendants, given by them to the plaintiff therefor, and has since been kept in repair and maintained by the owners and occupants of the Thousand Island House, except the rebuilding by Barker and Case in 1881, with like permission and license until January 21,1902, and no claim of right to the use of the bridge upon the defendants’ land has been made by the plaintiff or by any other owner or occupant of the Thousand Island House prior to the commencement of this action, except by maintaining the bridge as a rental therefor,” and for evidence tending to show that the plaintiff is entitled to maintain the bridge and the way leading over it on the ground that it is a way of necessity, or was such when the plaintiff received his grant of the premises in question upon which his hotel is erected.

We conclude that the evidence fairly supports the finding of the referee, that the construction of the bridge in question by the plaintiff and its use by him was under a license granted to him by the defendants or their predecessors in interest, which was revocable at their will, and that no right, title or interest to maintain or use such bridge was acquired by such plaintiff by adverse user under a claim of right adverse to the defendants or their predecessors.

We also conclude that there is no evidence which would justify a finding that the bridge in question or the way leading over the same constituted a way of necessity either at the time when the grant to the plaintiff was made or when the license theretofore granted to the plaintiff to erect and maintain such bridge for his purposes was revoked.

It follows that the judgment appealed from should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.  