Snell v. . Levitt

Earl, J. This action was commenced to recover damages for the wrongful interference by the defendant with plaintiff’s easement and right to draw water from a certain spring on defendant’s land, known as the Kingsbury spring. The material facts, as they appeared upon the trial, are as follows: Prior to the 12th day of August, 1862, one Edwin Snell was the owner of the land upon which the Kingsbury spring is located, and on that day he with his wife conveyed by warranty deed to one Francis A. E. Higgins a portion of .such land, which deed contained the following clause; “ The said parties of the first part also grant to said party of the second part the right to lay any kind of pump logs to convey water from the spring above the site of the old barn on the premises purchased by the above-named Edwin Snell of W. & C. Kingsbury, and to conduct the same from said spring down along the creek running therefrom until the same can be carried in a straight line to the premises hereinbefore conveyed to the party of the second part; said party of the second.part, however, is not to have and use from said spring more than half an inch stream *601 of water, and in digging to lay or repair said logs, said party of the second part is to replace the ground and smooth the same over so as not to do any more injury than necessary and indispensable.” There was at the same time upon the same land owned by Snell another spring called the Railroad spring from which the railroad company had the right to conduct water through logs. On the 1st day of July, 1863, Mrs. Higgins, not having made any use of the Kingsbury spring under her grant, executed under seal the following instrument, which was also signed by Edwin Snell and attested by two witnesses: “ For the consideration of seventy-five dollars I agree to relinquish all my right, title and interest held by me in a certain spring owned by Edwin Snell, known as the Kingsbury spring; also said E. Snell agrees to allow me to draw water from pump logs running across lots to his house, as long as there shall be water in said logs.” The pump logs referred to in that instrument were the logs running from the Railroad spring near the house of Mrs. Higgins to the railroad; and soon after the execution of that instrument, she tapped the logs from the Railroad spring and conducted water therefrom to her premises; and water was thus conducted for many years, as long as the pump logs remained there, or until the railroad company changed the mode of drawing water from that spring. After the occupants of the Higgins premises ceased to obtain water from the Railroad spring, they obtained it by permission! from, a spring upon neighboring premises, and never from the Kingsbury spring. This action was commenced on the 20th day of December, 1883, and prior to that time no person holding under the grant to Mrs. Higgins ever conducted water from or used the water of the Kingsbury spring, and no attempt whatever was made to nse the easement granted by Edwin Snell prior to October, 1883. During all the time Edwin Snell and those who held under him conducted water from the Kingsbury spring, and during portions of the time used the whole thereof. The premises conveyed by- Edwin Snell to Mrs. Higgins *602 were subsequently conveyed by her by warranty deed containing the same description of the premises and of the easement to conduct water from the Kingsbury spring as was contained in the deed to her; and by several mesne conveyances, the title to the same premises with the same description came to the plaintiff. The premises owned by Edwin Snell containing the Kingsbury spring were conveyed by him and his wife to John B. Churchill by warranty deed, dated the 30th day of March, 1867, which. deed contained this reservation : “ The parties of the first part hereby except and reserve the right and privilege at any time to lead water through a half-inch pipe ” from the Kingsbury spring to the house in which they lived. Subsequently the following conveyances of the same premises were made: On the 3d day of December, 1867, by Churchill and wife to James Bates; on the 29th day of July, 1875, by Bates and wife to Nathan Briggs; on the 3d day of December, 1876, by Briggs and wife to the First National Bank of St. Johnsville, and on the 1st day of March, 1881, by the bank to the defendant Levitt. These conveyances were all by warranty deeds which contained the same reservation as to the use of water from the spring to be -drawn in a half-inch pipe, and none of the deeds contained any reference whatever to the easement granted by Edwin Snell to Mrs. Higgins. This easement having been acquired by Mrs. Higgins by grant could not be lost by mere non-user for any length of time. .It could be lost by adverse user or possession by the owner of the servient tenement, and the easement could be lost and extinguished by abandonment in some of the modes or by some of the means recognized in the law. Non-user for a period of twenty years, under such circumstances as show an intention to abandon and give up the easement, is sufficient to extinguish it; and even an abandonment for a shorter period, under such circumstances as show an intention to give up and release an easement, which is acted upon by the owner of the servient tenement so that it would work harm to him if the *603 easement were thereafter asserted, would operate to extinguish the easement. Here there is no doubt of the actual intention of Mrs. Higgins to abandon the easement acquired by her from Edwin Snell. She expressly agreed to relinquish it for the consideration of $75 in money and the right to draw water from other logs for an indefinite time; and that agreement was acted upon for more than twenty years. During that time the defendant, and others through whom he claims, purchased the servient tenement by warranty deeds without any notice whatever of any claim of an existing easement under the deed to Mrs. Higgins in the premises conveyed. These facts are undisputed, and upon them the trial court should have held and ruled, as matter of law, that the easement was' abandoned and extinguished. (Vog ler v. Geiss, 51 Md. 407; Steere v. Tiffany, 13 R. I. 568; Dyer v. Sanford, 9 Met. 395; Curtis v. Noonan, 10 Allen, 406; Morse v. Copeland, 2 Gray, 302; Pope v. Devereux, 5 Gray, 409; King v. Murphy, 140 Mass. 254; Queen v. Chorley, 12 Ad. & El. [N. S.] 515; Crossley v. Lightowler, L. R., 2 Ch. App. 478, 482; Cartwright v. Maplesden, 53 N. Y. 622; White's Bank v. Nichols, 64id. 65.) In Washburn on Easements ([3d ed.] at page 661 and subsequent pages), the author says: “ The owner of an easement may destroy his right to the same by actually abandoning the right as well as the enjoyment, especially if a third party become interested in the servient estate after such act of abandonment; and it would operate unjustly upon him if the exercise of the easement were resumed in favor of the dominant estate. It is not easy to define, in all cases, what would be such act of abandonment as would destroy aright of easement, and each case seems to be a matter for a jury to determine. But nothing short of an intention so to abandon the right would operate to that effect, unless other persons have been led by such acts to treat the servient estate as if free of the servitude, and the same could not be resumed without doing an injury to their rights in respect to the same. And in this it is not intended to embrace questions which may arise *604 from a mere non-user of an easement.” “The question of abandonment is one of intention, depending upon the facts of the particular case. But time is not a necessary element in a question of abandonment. A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to time.” “ Although an abandonment is sometimes inferred from a non-user for twenty years, it seems to depend less upon the duration of the time than the acts which accompany the ceasing to use the easement for its effect upon the right. The length of time that this is continued is one of the elements from which the intention to abandon or retain the right is inferred. * * * The cesser to use, coupled with any act clearly indicative of an intention to abandon the right, would have the same effect as- a release, without any reference to the time during which such cesser has continued.” And the text of the learned author is well supported by'the authorities which he cites. Here, after an abandonment by Mrs. Higgins, Edwin Snell conveyed the water from this spring to two houses upon his own premises, and, with the water running from the spring through the pipes to those houses, the premises have several times been bought and sold. There was a non-user of the easement for upwards of twenty years, and a substituted easement was used during a large portion of that time. Hnder such circumstances, we think, there was not even a question of fact for the jury; but that it was the duty of the court to rule, as matter of law, that the easement was extinguished. The learned counsel for the respondent places great stress upon the fact that the instrument executed by Mrs. Higgins, and dated July 1, 1863, was not recorded, and he claims that it could, therefore, have no operation as against the subsequent conveyances of her premises to parties who purchased for a valuable consideration, without'notice of the instrument, and placed their deeds upon record. This contention might be well founded if the extinguishment of the easement depended *605 solely upon that instrument, as it would have been void as against subsequent conveyances first recorded. (1 R. S. 762, § 38; id. 756, § 1; Nellis v. Munson, 13 N. Y. State Rep. 825.) But if there had been no instrument whatever, and the same agreement had been made, the same consideration paid and the same acts done indicating an unequivocal intention to abandon the easement, it would have been just as effectually extinguished; and the easement having thus become extinguished, there was nothing for the deeds under which the plaintiff holds, or for the recording acts to operate on. The easement ceased to have any existence, whatever, and could not be the subject of a conveyance; having been extinguished it could be brought into existence again only by the act of the owner of the servient estate or by prescriptive use. The instrument is of importance only as showing, with the other facts, an intention to abandon the easement. We are, therefore, of the opinion that the learned court below fell into error, and that the judgment should be reversed and a new trial granted, costs to abide event. All concur. Judgment reversed.