Taylor v. Millard , 4 N.Y. St. Rep. 826 ( 1887 )

Bockes, J.:

If the right to enter and take the apples in question be deemed to be a mere license, resting in parol, it was revocable at the pleasureJ of the owner of the inheritance. This is settled in Cronkhite v. Cronkhite (94 N. Y., 323), and in many other cases. It is doubtful whether this right, however considered, not evidenced by any valid grant or reservation giving it effect as a grant, can be regarded and treated in law as an easement. (Wiseman v. Lucksinger, 84 N. Y., 31; Pierce v. Keator, 70 id., 419; Huntington v. Asher, 96 id., 604.) It is insisted that the right, being coupled with a grant or its equivalent, growing out of a parol partition between former owners, and supported by a consideration, constitutes .an easement attached to the seventy acres as the dominant tenement, resting upon the 100 acres as the servient tenement. The difficulty is that there was no valid grant in writing of the right or privilege here asserted by the defendant. It rested in parol merely. It was not contained in any grant, or declared by any reservation in a grant. So it was not, as it could not be, made a matter of record. Consequently the recording act supervened under which the plaintiff here may claim and have protection. John Willard in 1870 conveyed the 100 acres to William Á. Willard by deed, and the latter in 1880 conveyed the premises by deed to the plaintiff. Neither of these conveyances contained any reference to the right insisted on by the defendant; and both deeds were duly acknowledged and recorded. There was nothing in either of these conveyances, nor was there anything apparent in the use of either of the tenements by their respective owners, showing or indicating the actual existence of the right now insisted on. The plaintiff’s record title gave no indication of its existence; and he was bound only by what the record disclosed as to the title of the premises conveyed to him, with what was apparent in its occupation and use. It follows, therefore, that the plaintiff, as the case is made on the record before us, is protected in his absolute title by. the recording act. We need consider no other question in the case.

The judgment should be affirmed, with costs.

Learned, P. J., and Landon, J., concurred.

Judgment affirmed, with costs.