16 Barb. 184 | N.Y. Sup. Ct. | 1853
This was an action to recover the possession of a piece of land that had been laid out as a private road, through the farm of the plaintiff, near fifty years ago. It is immaterial whether the road was legally laid out or not; as even if it was illegally laid out, it would form the basis on which an adverse use and a prescriptive right to the easement might be founded. It was used as such private way more than twenty years, by the defendant’s grantor, and thus became a private way. The plaintiff relied on an abandonment and obstruction of the easement, for a number of years past, and an occupation of it utterly inconsistent with and destructive of its
After the testimony was closed, the defendant moved for a nonsuit, on the ground that there was no period of nonuser proved to have existed for twenty years; and no act proved showing a permanent obstruction and an intention to abandon it as an easement. The judge denied the motion; and we think he decided that question right.
After the trial was closed, the judge before whom the cause was tried, without a jury, decided all the questions of fact and law, for the plaintiff, and ordered judgment for the possession. And the question now is, whether that decision was correct. He found, as a question of fact, “ that the road had become unnecessary and useless for the purpose of a way; that the defendant had appropriated the premises for six or seven years, to uses entirely inconsistent with their use as a road, and with the intention to abandon it as a private wayP Now unless the decision of this cause in favor of the plaintiff was erroneous, on these grounds thus found, we must affirm the judgment; because there was some evidence to support the finding, and that cannot be questioned, any more than the verdict of a jury. The counsel for the defendant, therefore, insists that where there has not been a nonuser for twenty years, proof must be given of some permanent obstruction, manifesting an absolute intention to abandon the easement, or the right is not extinguished. And
Gridley, Pratt, W. F. Allen and Hubbard, Justices.]
It is, however, enough to say that the facts in the case furnished evidence which tended to show an absolute intention permanently to abandon the easement. These facts were passed on by the justice; and his finding is as decisive, on a question of fact, as the verdict of a jury. Had we less doubt of the correctness of the decision than we have, it would be impossible for us to disturb the finding of the justice, without subverting the principles on which a decision upon questions of fact has, for the wisest reasons been made to rest.
Judgment affirmed.