82 N.Y. 265, Ward v. Warren

• Citation: 82 N.Y. 265
• Docket Number: .
• Date: 05 October 1880
• Parties: R. HALSTEAD WARD, Respondent, v. NATHAN B. WARREN et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 265

82 N.Y. 265

R. HALSTEAD WARD, Respondent,

v.

NATHAN B. WARREN et al., Appellants.

New York Court of Appeal

October 5, 1880

Argued Sept. 22, 1880.

Page 266

COUNSEL

Martin I. Townsend for appellants. To establish a title to this easement by prescription, it was necessary for the plaintiff to prove that his use of the right of way was with the knowledge and acquiescence of all three of the defendants. (Washburn on Easements [3d ed.], 40, 160; Portmore v. Bunn, 3 Dowl. & Ry. 145; Crippen v. Morss, 49 N.Y. 63; Marshall v. Trumbull, 28 Conn. 183; McGregor v. Wait, 10 Gray, 72; 2 Washburn on Real Prop. 300; Blake v. Everett, 1 Allen, 368; Carbrey v. Willis, 7 Id. 368; Hannefin v. Blake, 102 Mass. 297; Parker v. Foote, 19 Wend. 309; Calvin v. Burnett, 17 Id. 568; Cleveland v. Ware, 97 Mass. 409.) The plaintiff and his grantors could not acquire an easement in this land by prescription, because during all the time of their occupation the servient estate was occupied by tenants, and was not in the possession of the defendants, so that they could protect themselves from this use by an action of trespass. (Washburn on Easements [3d ed.], 163, 164; Baker v. Richardson, 4 B. & Ald. 609; Baxter v. Taylor, 4 B. & Adol. 72; Pearsall v. Post, 20 Wend. 113, 115; McGregor v. Wait, 10 Gray, 72; 2 Washburn on Real Prop. [ 3d ed.], 278, 296; Wilkins v. Peck, 13 N.H. 360; Melvin v. Whitney, 13 Pick. 184.) The judgment that plaintiff "recover possession of the strip of land or passage-way" in question, "as and for a way," etc., is erroneous. (2 Blackstone's Comm. 35; Washburn on

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Easements, 97, marg. p. 609; Dixon v. Clow, 24 Wend. 190; Ballard v. Dyson, 1 Taunt. 279, 288; Allan v. Gomme, 11 Ad. & Ell. 759.)

James Lansing for respondent. Defendants must be deemed to have acquiesced in the user, having without notice continued to re-let the premises for short terms without taking possession of the land and stopping the user or insisting upon resistance by the incoming tenants. (Goddart on Easements, 113; Bright v. Walker, 6 M. & R. 219.)

EARL, J.

This action was commenced to enjoin the obstruction by the defendants of a passage-way claimed by the plaintiff over their land. The parties owned adjoining lots on Fourth street, in the city of Troy, the plaintiff's lot being northerly of that owned by the defendants. There were dwelling-houses upon both lots, plaintiff's house standing on the southerly line of his lot, and the house of defendants standing southerly of their north line, so as to leave an alley between the two houses nearly three feet wide. The plaintiff claimed an easement in this alley for passage to and from the rear part of his house and lot. Shortly before the commencement of this action the defendants built up to their northerly line, thus covering and obstructing the passage-way.

The plaintiff claims the easement by prescription, and the court, at Special Term, found that the use of the way by him and his predecessors, in the title of his lot, had been adverse, under claim of right, exclusive, continuous, uninterrupted, open and notorious, with the knowledge and acquiescence of the defendants and their grantors, for the period of forty-eight years. It is not disputed that if this finding is to stand, it will fully justify a judgment for plaintiff for the relief demanded by him.

But it is claimed on behalf of the defendants that the evidence did not authorize the whole of this finding. It is contended that the undisputed evidence showed that the user was not with the knowledge or acquiescence of the defendants and

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their grantors. It is true that it is said in some of the textbooks and decided cases, that to constitute an easement by prescription, the user must have been for the requisite time "with the knowledge and acquiescence" of the owner of the servient tenement. (Washburn on Easements [3d ed.] 160; 2 Washburn on Real Property, 300; Blake v. Everett, 1 Allen, 248; Carbrey v. Willis, 7 Id. 368; Colvin v. Burnet, 17 Wend. 568; Parker v. Foote, 19 Id. 309.) But I apprehend all that is meant by the phrase quoted is that the user must have been not clandestine or by stealth, but open, notorious, visible and undisputed; and when such a user is under claim of right, adverse, the owner of the servient...