Wiggins v. . McCleary

Per Curiam. If it be granted that the plaintiff showed upon the trial that she had the title in fee or otherwise to the alley, still, if the defendant had a right to the user of it for the purpose complained of, she cannot maintain her action. The finding of the learned justice who tried the case determines that he had such right. It is not put upon actual use by him and his grantors for such period, and in such manner, as to constitute a possession adverse to the owner of the real title. It is put upon the effect of the conveyances'in evidence. These conveyances are not set out in the papers before us. But the synopsis of them furnished, and the oral evidence in *348 the case, indicate this: that Joshua Sands was once the owner of a tract of land upon which this alley, and the lots now abutting upon it, are situated; that Sands laid out this tract into lots; that he laid out this alley; and that he then conveyed lots, in terms bounding them upon the alley. There was enough in evidence to warrant the learned justice in inferring that these lots were sold and bought with reference to this alley as a continuing convenience to them; and in finding that there was an easement in the alley, conveyed to the purchasers and their assigns. The conveyances do recognize this alley as a visible and permanent boundary of the lots described as abutting upon it. In the oral testimony, though it is conflicting, there was matter which tended to show a use of the alley by the grantees in the conveyances and their assignees. It is well settled that where the owner of a tract of land lays it out into lots, and intersects it with a street or alley, obviously for the convenience of the lots, and purchases are made in reference to such convenience, and conveyances are given bounding lots upon such street or way, recognizing it as an established and permanent subject of use by the owners of the lots, there is created in the owners an easement in the street or way which cannot be recalled. (Trustees, etc., v. Cowen, 4 Paige, 510.) Bissell v. N. Y. C. R. R. Co. (23 N. Y., 61), in which Mason, J., says of a deed of lots bounding them upon a street, not public, because not accepted by the authorities, that, as between the grantees and the grantor, his conveyance, per se, dedicated it to their use as a street. Whatever may be the evidence as to non-user by the grantors of the defendant, if it go no farther than is claimed by the plaintiff, it does not impair the right which he obtained from them. A right of way created by deed is not lost by mere non-user. (Smyles v. Hastings, 22 N. Y., 217; Arnold v. Stevens, 24 Pick., 106.) And where non-user is evidence of an abandonment of a right, it will depend upon the circumstances, and is a question of intention. (Ward v. Ward, 14 *349 Eng. Law and Eq., 413.) This is a question of fact; and the plaintiff brings us no finding upon it. The judgment appealed from should be affirmed, with costs to the respondent. All concur. Judgment affirmed.