Eckerson v. Crippen

• Decision Date: 26 October 1888
• Citation: 18 N.E. 443,110 N.Y. 585
• Parties: ECKERSON v. CRIPPEN.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 585

18 N.E. 443

ECKERSON

v.CRIPPEN.¹

Court of Appeals of New York.

October 26, 1888.

Appeal from supreme court, general term, Fourth department.

Action by William N. Eckerson against Schuyler G. Crippen for damages for cutting and severing a pipe which carried water to plaintiff's house, and for an injunction against further interference with the pipe. The issues were referred to D. P. Loomis to hear and determine, and the defendant appealed from the judgment in favor of plaintiff entered on the report of the referee. The plaintiff appeals from the judgment of the general term reversing the judgment in his favor.

1. LICENSE-PAROL-REVOCATION.

An oral agreement by which one gives to another the privilege to take from a spring of the former sufficient water for domestic purposes, through a pipe from the spring, is a mere license, which is revoked by a subsequent deed from the licensor granting to a third person the privilege of bringing from the spring sufficient water to fill a pipe of a size drawing all the water that there is in the spring.

2. LICENSE-ADVERSE USER-ACQUIESCENCE.

The use by the licensee after this revocation of sufficient water from the spring for his domestic purposes, under a claim of right, is an adverse user as against the grantee in the deed, though both of them use the same pipe from the spring, and the licensee taps it on his own land, and such a user for more than 20 years by the licensee and his grantees, the grantee in the deed and those claiming under him acquiescing, gives a right to its continuance.

ANDREWS, J., dissenting.

Charles T. Brewer, (James A. Lynes, of counsel,) for appellant.

Edick & Smith, (F. L. Smith, of counsel,) for respondent.

PECKHAM, J.

The parol agreement between Caryl and Daniel Crippen, made in 1837, for the use of water from the spring belonging to Crippen, although founded upon a consideration, was nothing more than a license. We cannot see any material distinction between this case in that respect and those of Wiseman v. Lucksinger, 84 N. Y. 31, and Cronkhite v. Cronkhite, 94 N. Y. 323. In the former case the parol agreement was quite as specific in its terms as the one here proved, and yet it was held not sufficiently complete and definite to be regarded in equity as equivalent to a grant by deed or conveyance in writing, as required by the common law and by our statute. The grant by deed of Daniel Crippen to Lamoure of the privilege to bring water from the spring sufficient to fill a three-fourths inch pipe, although not in terms a revocation of the license to Caryl to take water from the same spring sufficient for all domestic purposes, yet, taken in connection with the fact found by the referee, that a three-fourths inch pipe would draw all the water there was from the spring, the grant above mentioned can be regarded in no other light than as a revocation of such license to Caryl. Notwithstanding this revocation, the fact is that Caryl asserted and claimed the right to and did take water continuously from such spring sufficient in amount for his domestic purposes, and he and his grantees have actually continued this use and under this claim of right for over 40 years and down to the year 1880, when the trouble culminating in this lawsuit commenced. This use has been submitted to and acquiesced in by Lamoure and his grantees for that length of time. After the revocation of the license to Caryl by Crippen became known to Caryl, his further use of the water-open, notorious, and under a claim of right as well against Crippen as all others-would inaugurate an adverse user as against the world. As there was only water enough to fill one pipe of three-quarters inch size, every drop taken by Caryl under his claim of right was a direct adverse user of that quantity of water belonging to Lamoure under his conveyance above mentioned. It is true that Lamoure and Caryl used the same pipe in conducting the water from the spring, and that Caryl tapped...