38 Vermont, 94. - 1865. [Reported herein at p. 822.]
(a.) Implied in consequence of a restrictive covenant,
159 Massachusetts, 6. - 1893.
[Reported herein at p. 387.]
139 New York, 93. - 1893.
[Reported herein at p. 388.]
(6.) Implied where owner of premises sells a parcel for which he has created special advantages to the detriment of the rest.
47 New York, 73. - 1871. [Reported herein at p. 126.]
(c.) Implied by reference in deed to a way or a map showing a way.
Grover, J., in
45 New York, 557. - 1871.
The question whether the lot conveyed to the plaintiff was bounded by north side of or center of the alley, is not material to the right claimed by the plaintiff in the action, which was a right of way over the alley, and the correctness of the legal conclusion of the referee upon this point will not be examined. The judgment declaring the plaintiff entitled to a right of way over the alley cannot be sustained upon the ground that he required the right as a way from necessity, for the reason that access might be had from the land conveyed to public streets; nor can it be sustained upon the ground that the alley had been dedicated to the public as a highway, for the reason that it had never in any way been accepted or used as such by the public. The only ground upon which the judgment can be sustained, is that the plaintiff acquired a right of private way over the alley as appurtenant to the lands conveyed to him by the Maxwells. This right had not become appurtenant to the lands in consequence of a previous user in connection therewith, the alley never having been so used. The substantial facts proved and found by the referee, are that the Maxwells, prior to their conveyance to the plaintiff, were the owners of a parcel of land, embracing the lands conveyed to the plaintiff, South alley and other lands; that they caused the said parcel to be surveyed and subdivided into lots, of suitable size for building purposes, and a map thereof to be made, upon which the lots were designated by numbers, and South alley designated as an alley, and afterward conveyed lots forty-eight, forty-nine and fifty to the plaintiff, describing lot fifty as all that certain lot situate in the village of Saratoga Springs, known and distinguished as lot number fifty on a map of village lots owned by the parties of the first part, referring particularly to the said map, and specifying the boundaries of the lot as laid down thereon, referring as follows to South alley; thence to a stake in north line of South alley; thence along the north line of South alley, etc. South alley was laid down on the map as an alley running along the boundary of the lot, sixteen feet in width, continuing along past the rear of lot fifty, and along other lots owned by the Maxwells. This conveyance of the lot, so made in reference to the map designating the strip as an alley, gave the plaintiff a right of way over the alley to the rear of his lot, as against his grantors and their subsequent grantee of the alley. In re Mayor, 2 Wend. 472; Smyles v. Hastings, 22 N. Y. 217; Badeau v. Mead, 14 Barb. 328. The question whether the plaintiff had not an adequate legal remedy for the disturbance of this right of way does not arise, as it was not insisted upon in the answer. Roy v. Platt, 4 Paige, 77; Truscott v. King, 2 Seld. 147. The rights of the party were established by the conveyances. This renders an examination of the exceptions taken by the defendant to other evidence introduced by the plaintiff unnecessary.
1 The interests arising under (a) and (b) are often called "equitable ease, ments." - Ed.
b. By operation of law.
77 Illinois, 570. - 1875. [Reported herein at p. 819.]
19 Wendell (N. Y.), 507. - 1838.
[Reported herein at p. 817.]
c. By prescription.
77 Illinois, 570. - 1875. [Reported herein at p. 819.]
3. Transfer of an Easement.1
4. Destruction of an Easement.
a. Effect of release abandonment, non-user; merger.
no New York, 595. - 1888.
Earl, J. - * * * This easement having been acquired by Mrs. Higgins by grant could not be lost by mere nonuser for any length of time. It could be lost by adverse user or possession by the owner of the servient tenement, and the easement could be lost and extinguished by abandonment in some of the modes or by some of the means recognized in the law. Nonuser for a period of twenty 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 would work harm to him if the easement were thereafter asserted would operate to extinguish the easement.
Here there is no doubt of the actual intention of Mrs. Higgins to abandon the easement acquired by her from Edwin Snell. She expressly agreed to relinquish it for the consideration of $75 in money and the right to draw water from other logs for an indefinite time; and that agreement was acted upon for more than twenty years. During that time, the defendant, and others through whom he claims, purchased the servient tenement by warranty deeds without any notice whatever of any claim of an existing easement under the deed to Mrs. Higgins in the premises conveyed. These facts are undisputed and upon them the trial court should have held and ruled, as matter of law, that the easement was abandoned and extinguished. Vogler v. Geiss, 51 Md. 407; Steere v. Tiffany, 13 R. I. 568; Dyer v. Sanford, 9 Met. 395; Curtis v. Noonan, 10 Allen, 406; Morse v. Cope/and, 2 Gray, 302; Pope v. Devereux, 5 Gray, 409;