Erb v. Brown

The opinion of the court was delivered, October 9th 1871, by Williams, J. All the assignments of error have been abandoned with the exception of the third, and there is nothing of substance in this assignment. The servitude imposed on the plaintiff’s land for the benefit of the defendant’s estate was created by deed, and under the Statute of Frauds could not be assigned, granted or surrendered unless by deed or note in writing, or by act and operation of law. It could not be extinguished or renounced by a parol agreement between the owners of the dominant and the servient tenement: Dyer v. Sandford, 9 Met. 395. [219] Nor would it become extinguished by disuse, or lost by nonuser : Curtis v. Keesler, 14 Barb. 511; Smiles v. Hastings, 24 Id. 44; unless there were a denial of the title, or other act on the adverse part to quicken the owner in the assertion of his right: Nitzell v. Paschall, 8 Rawle 82. Here the offer was to show not an extinguishment or surrender of the easement by deed, but a parol agreement by the defendant’s ancestor that he would give up his claim to the easement, and that Shirk, the plaintiff’s vendor, should have the property clear of the encumbrance. No consideration for the agreement to abandon or release the easement was offered to be shown; and without a consideration a parol release of the right would not be binding, and could not be enforced: Kidder v. Kidder, 9 Casey 268. Nor are the facts stated in the offer sufficient to make out a case of estoppel. If the offer had been to show that Shirk was induced to bid for the servient tenement by the representations or agreement of Buch, the owner of the dominant tenement, that he would give up his claim to the easement, and that Shirk should have the property clear of the encumbrance, then Buch, and the defendant claiming under him, would be estopped from asserting title to the easement. But the evidence shows that Shirk had notice of the existence of the easement, and that he purchased the property at the executor’s sale expressly subject to it. He could not, therefore, have been injured or prejudiced by the representation or agreement recited in the offer as having been made by Buch when he executed the deed, if any such representation or agreement was made, for he was only induced thereby to do what by his contract of purchase he was bound to do. As the offer, if proved, would not have availed the plaintiff, it was rightly-rejected. Judgment affirmed.