Welsh v. Taylor

• Decision Date: 01 October 1892
• Citation: Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896 (N.Y. 1892)
• Court: New York Court of Appeals Court of Appeals
• Parties: HENRY WELSH, Appellant, v. JOHN TAYLOR, Respondent.

134 N.Y. 450

31 N.E. 896

WELSH

v.TAYLOR.

Court of Appeals of New York, Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, first department.

Action by Henry Welsh against John Taylor to remove an obstruction consisting of a building from the rear part of an alley adjoining his property, and to prevent the placing and maintenance of a gate at its entrance. From a judgment of the general term affirming a judgment for defendant at special term, (2 N. Y. Supp. 815,7 N. Y. Supp. 376,) plaintiff appeals. Reversed.

James C. Carter, for appellant.

John E. Parsons, for respondent.

The other facts fully appear in the following statement by BROWN, J.:

The plaintiff is the owner of property in New York known as Nos. 143 and 145 Franklin street, bounded easterly by an alleyway. Defendant is the owner of property known as Nos. 139 and 141 Franklin street, bounded westerly by said alley. The common source of title was Alexander L. Stewart. He conveyed Nos. 143 and 145 to plaintiff's grantors, with the ‘right and privilege of passing and repassing through said alley without hindering, obstructing, or annoying such other persons as may be legally privileged to pass through the same; and subject at all times hereafter to the bearing and paying of a just proportion of the expenses of regulating and repairing the said alley and of such taxes and assessments as may be laid thereon.’ Nos. 139 and 141 were conveyed to defendant's grantors, with a similar right expressed in similar language; and the further right to extend any building erected or to be erected on the front part of the lot under or over said alley, but so as to leave the same 7 feet 9 inches wide, and not less than one story high in the clear. The alley was 83 feet deep, and at a distance of 62 feet from Franklin street broadened out so that at its rear end, and for a distance of 19 feet therefrom, it was about 21 feet wide. The evidence showed that, in 1856, Smith Harriot acquired title to No. 143, which abutted upon the alley on the west with the easement in the alley. He died in 1844, leaving a will whereby he devised the property to his wife, Mary Ann, for life, and upon her death to his three children, Frederick P., Smith, and Estelle. Mrs. Harriot subsequently acquired title to No. 145. She died in 1877, and in 1879 plaintiff purchased both pieces of property. All deeds in plaintiff's chain of title conveyed the same rights in the alley subject to the same duties. The defendant and one James Wilson acquired title to a part of 139 and 141 in 1859, and the balance in 1872. Wilson conveyed his interest to defendant in 1877. Defendant's property was of an average depth exceeding 100 feet, and included a lot about 23 feet by 28, directly in the rear of the alley. The right to build over and under the alley was appurtenant to a lot fronting on Franklin street and 62 feet deep. In 1873 defendant and Wilson erected a fourstory brick building across the full width of the alley, and covering 20 feet of the rear thereof. They also maintained a gate at the entrance. This action was brought to compel the removal of the building and the gate, and to enjoin defendant from interfering with plaintiff's easement. The defense was (1) that during the ownership of the Harriots the easement had been abandoned; and (2) that the building had been erected with the knowledge of the owners of 143 and 145, and without objection on their part, and that plaintiff had purchased with knowledge of such facts, and was therefore estopped from asserting any right to use the alley. The trial court found that the owners of 143 and 145, or some of them, knew that the building was being erected over the alley, and made no objection thereto, and that Mary Ann Harriot, Smith Harriot, and the other owners of 143 and 145, by their acts, manifested an intention to abandon, and did abandon, the right to use the alley; and, as a conclusion of law, that plaintiff had failed to establish any right to the easement; and dismissed the complaint. Further material facts appear in the opinion.

BROWN, J., ( after stating the facts.)

The judgment in this action was first reversed by the general term, but upon a reargument it was affirmed. The final decision of the court rested upon the authority of Snell v. Levitt, 110 N. Y. 595, 18 N. E. Rep. 370, and it appears from the general term opinion that the proposition assumed to have been there decided, which was made applicable to this case, was that an easement acquired by grant may be extinguished by actual abandonment or nonuser for a period less than 20 years. That question was not involved in the facts of the case cited, and its consideration was not necessary to its decision. There was in evidence a release in writing of the easement executed by the grantee thereof, who was the plaintiff's grantor, made in consideration of $75 and the grant of a new easement. There was nonuser of the easement in question for upwards of 20 years, and use of the substituted easement during a large part of the same period. The question,therefore, whether nonuser alone for a greater or less period than 20 years would have extinguished the easement was not before the court. Nor is there anything in the opinion to the effect that such question should be answered in the affirmative.

On the contrary, it was said by Judge EARL, in stating the law applicable to the extinguishment of such an easement, that it could not be lost by nonuser for any length of time. All that the court there decided was that the release of the right claimed by plaintiff, followed by nonuser for upwards of 20 years, and use for a long period of a substituted easement, constituted conclusive evidence of its extinguishment, and that the trial court should have so ruled as a question of law. The main reliance of the plaintiff in that case was upon the fact that the release was not recorded, and was therefore void as to him, he being a purchaser without notice. But that claim was not sustained, on the ground that the agreement to give up the easement, and the unequivocal intention thereby expressed to abandon it, were the effectual and material things to be considered, and not the fact that such an agreement was expressed in writing and executed under seal. It was this element in the case that led the learned judge writing the opinion of the court to say that ‘nonuser for a period of 20 years, under such circumstances as show an intention to abandon and give up the easement, is sufficient to extinguish it; and even an abandonment for a shorter period, under such circumstances as show an intention to give up and release an easement which is acted upon by the owner of the servient tenement, so that it should work harm to him if the easement was thereafter asserted, would operate to extinguish it.’ The learned general term evidently overlooked the qualifying language of the last sentence quoted. It was applicable to the case then before the court. There was the release and the use of the substituted easement showing an unequivocal intention to abandon, and, in reliance on that act, use of the waters of the spring in question by the grantor of the easement,and those who subsequent to the release had acquired his title. There was therefore a clear case of estoppel, and that an easement created by grant could be extinguished by estoppel was the effect of the language used in reference to an abandonment for a less period than 20 years, which I have quoted from the opinion. In Washburn on Easements (4th Ed. p. 707) it is said that the question of abandonment is one of intention, but that time is not a necessary element therein. ‘A cesser to use, accompanied by an act clearly indicating an intention to abandon the right, would have the same effect as a release, without reference to time.’ And this proposition is fully sustained by authority. Pope v. Devereux, 5 Gray, 409; Reg. v. Chorley, 12 Q. B. 519; Moore v. Rawson, 3 Barn. & C. 322; Dyer v. Sanford, 9 Metc. (Mass.) 395; Veghte v. Water Power Co., 19 N. J. Eq. 143;Crain v. Fox, 16 Barb. 184;Cartwright v. Maplesden, 53 N. Y. 622 Snell v. Levitt is not, therefore, an authority for the proposition that an easement created by grant can be extinguished by nonuser. Under the rule of that case, an intention to abandon must exist in connection with and as a cause of nonuser. The case is distinguished from the one before us, in that there was evidence of an unequivocal act releasing the easement. The learned counsel for the respondent, while not claiming that that case goes further than I have indicated, contends that the evidence of the intention to abandon, which is necessary to sustain the conclusion reached at the trial, exists in the facts found by the court. Giving him the full benefit of that decision, we may examine this case in the light of its authority.

The judgment in this case rests upon two grounds: (1) An estoppel based upon knowledge of the erection of the building and omission to object to it by the owners of Nos. 143 and 145 Franklin street; (2) abandonment of the easement. The trial court found (1) ‘that the owners of Nos. 143 and 145 Franklin street, or some of them, knew that the building was being erected over the alley, and made no objection to the erection of the same.’ This finding, if supported by the evidence, is insufficient to create an estoppel. The owners of 143 and 145, at the time of the erection of the building, were the widow and three children of Smith Harriot. The plaintiff has succeeded to the...