Nicholls v. . Wentworth , 100 N.Y. 455 ( 1885 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The General Term reversed a judgment awarding a perpetual injunction against the defendant from obstructing a certain alley, upon the ground that the evidence did not authorize the finding made by the trial court, that the use of the alley by the plaintiff and her grantors had for a period of more than twenty years been open, notorious and well known, under a claim of right, and adverse to the exclusive ownership of any part thereof by the defendant.

The order of reversal must be deemed to have been made upon questions of law as it does not specify that it was made upon questions of fact. (Code of Civ. Pro., § 1338; Davis v.Leopold, 87 N.Y. 620; Rider L.R. Co. v. Roach, 97 id. 378.) The only question, therefore, for our consideration is whether there was sufficient evidence, to support the finding of the trial court, and the legal conclusions predicated thereon, that such a user will establish a right in one party, to an easement in the land of another, if continued for a sufficient length of time. There is no conflicting evidence in the case, and the finding was based upon undisputed testimony. It showed that in the year 1846, one Reynales and Wentworth being owners of adjoining lots on Church street, in the village of Lockport, opened an alley-way about fifteen feet in width, one-half lying on each side of the dividing line, and then commenced and mutually continued to use the same, either by themselves or their respective grantees, uninterruptedly from that time to the year 1880, as a private way to reach the stables and other structures on the rear of their respective lots. Each party erected fences bounding the side of the alley on his own land and they have each substantially maintained them until the present time. Each party built barns on their respective lots adapted to the joint use of such alley and have ever since occupied them, and have used said alley in passing over and through the same with their horses and carriages, etc., from Church street to and from such barns and other structures. In 1869 the plaintiff purchased of its owner the westerly half of the lot lying south of said alley, and at the suggestion of the defendant's husband, who was then and for a period of twenty-five years had been the owner of the northerly lot adjoining said alley, caused to be inserted in her deed a clause describing the alley as being half on each lot and continuing as follows: "together with such right of way in the alley aforesaid from Church street to the north end of the premises above described as the said parties can lawfully grant to be used and enjoyed always in common with the owners of the remaining east part of said lot No. 15, and the owner or owners of the said lot next north of said lot No. 15 who have an interest or right of way in common in said alley, and this conveyance being made subject to the right of the owner of said lot north of said lot No. 15 on said alley." It also appears that the plaintiff about the same time built an expensive house on her lot which was so adapted thereto, that she could not conveniently obtain access to her stable in the rear except through the alley in question.

There is no evidence in the case conflicting with the presumption of mutual grants by the respective owners to each other of the right of way in question, or with the deductions logically flowing from the declaration made in the deed above referred to, by the owner of one lot and the acquiescence therein of the other, of the existence of a right in the alley capable of being conveyed and acquired under such a deed. Such a declaration participated in by both adjoining owners not only characterized any subsequent user of the alley as being made under a claim of right, but authorized the inference that the prior user and possession had been exercised and possessed under a similar claim. The declaration of the defendant's devisor made previous to the opening of the alley, that the owners of the said lots intended to lay out and open an alley on the boundary line for the use of their respective premises, tends to confirm the presumption of a mutual grant of a right of way over the premises in question.

There being no direct evidence of the agreement under which the user commenced there is nothing to rebut the presumption of a mutual grant, flowing from the acts of the parties, in fencing the inclosure and exercising the right of passage thereover, without question or objection for a period of twenty years.

The doctrine that the owner of one tenement may acquire an easement over the premises of another by the open, notorious and adverse occupation thereof under a claim of right for a period of twenty years is too well settled by the authorities to permit of any dispute. The case of Barnes v. Haynes (13 Gray, 188) is identical with this in its leading facts, and the opinion, written by Chief Justice SHAW, is so directly in point that we cannot refrain from making a brief extract therefrom. He says: "The use of the common way by each, so far as it was used in and over the soil of the other, was adverse, uninterrupted and used under a claim of right and continued more than twenty years, and thereby each acquired such an easement in that portion of the land of the other which was covered by the way as the other could not lawfully disturb. When such actual uninterrupted use of a way, as of right, is shown to have existed a sufficient length of time to create the presumption of a grant, if the other party relies on the fact that those acts, all or some of them, are permissive, it is incumbent on such party by sufficient proof to rebut such presumption of a non-appearing grant, otherwise the presumption stands as sufficient proof and establishes the right."

The same question has also been recently examined and discussed in an elaborate opinion by Judge EARL, in this court in the case of Ward v. Warren (82 N.Y. 265) where it was held that proof of an exclusive, continuous, uninterrupted, open and notorious user under a claim of right with the knowledge and acquiescence of the owners of the servient tenement for a period of upwards of twenty years, authorizes the presumption of a grant of the interest so exercised and enjoyed.

The court below refers to the case of Wiseman v. Lucksinger (84 N.Y. 31) as maintaining some principle conflicting with the views above presented. We do not so understand that case. The proof there showed the understanding under which the user in question commenced, and it was there held that such proof showed a license merely and was revocable by the owner and licensor.

The order of the General Term should be reversed and judgment of Special Term affirmed.

All concur.

Order reversed and judgment affirmed.