Snell v. Levitt

• Decision Date: 26 October 1888
• Citation: 18 N.E. 370,110 N.Y. 595
• Parties: SNELL v. LEVITT.
• Court: New York Court of Appeals Court of Appeals

110 N.Y. 595

18 N.E. 370

SNELL

v.LEVITT.¹

Court of Appeals of New York.

October 26, 1888.

Appeal from supreme court, general term, Third department.

Action by Aaron Snell against George Levitt to recover damages for the wrongful interference with an easement alleged to be appurtenant to plaintiff's land. Judgment for plaintiff at Montgomery circuit, and defendant appealed to the general term, where the judgment was affirmed, and defendant again appeals.

EASEMENT-EXTINGUISHMENT-NON-USER WITH INTENT TO ABANDON.

Plaintiff's grantor, by deed from defendant's grantor, had obtained the right to pipe water from a certain spring; and within the year following, for a sum of money and the grant of a similar easement in another spring, by an unrecorded written agreement relinquished the first easement. For 20 years neither plaintiff, nor those through whom he claimed, used or claimed use of the easement, but obtained water from the latter spring or other sources. Defendant derived title to the land on which the first spring was situated through deeds none of which recognized the existence of the former easement, and he was without notice of such claim, and he and his privies continually used part or all of the water from the spring. Held, that the easement was extinguished by non-user with intent to permanently abandon, and the fact that the agreement was not recorded was immaterial.

E. Countryman, for appellant.

N. C. Moak, for respondent.

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 of water; and, in digging to lay or repair said logs, said party of the second part of 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 use 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 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,...