147 N.Y. 367 | NY | 1895
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *370 The plaintiff, owning property abutting on West 53d street, in the city of New York, recovered an interlocutory judgment against the defendants; which enjoined them from maintaining and operating their elevated railway in front of his premises, unless they acquired title to the street easements by condemnation proceedings. In proceedings following the deeree, the mesne and fee damages were ascertained, and, upon this appeal from the interlocutory and final judgments in the action, the defendants make the point that there had been an abandonment and an extinguishment of the easements in the street, upon which plaintiff's property abutted, before the latter purchased the same. This abandonment of easements appurtenant to the land they claim to have been effected, as the result of certain agreements entered into between prior owners of the land and of a settlement made of an action at law brought against the defendants by one of *371 these owners. This is an important point; for if it is well founded in the facts a complete defense is made out. As they base this claim to an extinguishment of the easements upon an intention to abandon them, as evidenced by some antecedent transactions, which was so effectuated, though at a time subsequent to the plaintiff's purchase, as to complete the act of extinguishment as of the earlier date, we must consider the facts somewhat carefully; in order to see if they establish all that is claimed for them and justify the legal conclusion contended for.
The rule being that the abandonment of such an easement may be established by the evidence of acts clearly indicating an intention to abandon the right, is this a case for the application of the rule? In the White Case, (
The peculiar features in the White and Snell cases, which have been referred to, were, in the one, an express authorization to build the elevated railroad and, in the other, an express relinquishment of an easement to conduct water; upon both of which agreements the parties favorably affected thereby had acted. We will not find in the facts of this case much resemblance to the features of either of the other cases. Lathrop, one of the predecessors in title of the plaintiff, commenced an action at law against the defendants to recover *372 from them $10,000 damages for the loss of rents and the injury to the value of his premises, occasioned by their trespass upon his property rights in the street. Subsequently, having contracted to sell the property affected to Gillie and Walker, they united in executing an agreement; wherein it was "mutually agreed between the parties that all right and claim and demand heretofore accrued or arisen, or which may hereafter arise or accrue, to either of the parties to this agreement against any and every corporations and corporation, person and persons, for or by reason of the erection and building and maintaining of the elevated railroad, * * * shall belong to and are hereby retained by and reserved and granted to William G. Lathrop, Jr., and his legal representatives and assigns, and are hereby excluded and excepted from any and every grant and conveyance of said premises, or any part thereof, with full liberty and power and authority to said Lathrop to sue for, collect, compromise, compound and receive to his own use, and release and discharge any and every such claim and demand now existing and accrued, or hereafter to arise and accrue, against any corporation or corporations, person or persons, for such elevated railroad and the using and running of the same." Thereafter, and as of the date when the deed of the premises was made, another agreement was executed at the foot of the other agreement, to the effect, that it was "excepted from the grant and conveyance of the land; * * * said grant being made subject to the conditions of the above agreement." These agreements were not recorded; nor did the deed mention them, or except any rights; but was in the usual form of a deed with full covenants and warranty, conveying with all the hereditaments and appurtenances, etc. A few months later, Gillie and Walker deeded the premises to the plaintiff. More than three years after the plaintiff's purchase, Lathrop settled with the defendants for a payment of $2,500; discontinued his action and delivered to the defendants a release from all claims by reason of the construction and operation of their railroad and which stated Lathrop's "intention *373 to release, etc., all such right, etc., in 53d street and the easements therein appurtenant to said premises, which, on the 11th day of December, 1884," (the date of his deed to Gillie and Walker), "were in the possession and occupation" of these defendants.
This present action was commenced by the plaintiff at a still subsequent date. Upon these facts the defendants argue that the agreement of Lathrop with Gillie and Walker evidenced the intention to abandon the street easements as between them, and that the subsequent payment to Lathrop in settlement of his action retroacted to the time of its commencement and so completed "the act of extinguishment as of that date." This argument, must, however, assume for the agreement a more comprehensive effect than either its language admits, or the law would concede to it, and it slights the grant to this plaintiff and regards him as a purchaser chargeable with knowledge of facts outside the record title, which bound him as to transactions to which he was not a party. Considering, in the first place, Lathrop's action, we find it to be one of law, for the recovery of damages from the defendants for their unlawful invasion of his rights of easement in the street and in such an action the recovery is confined to such temporary damages as have accrued to the commencement of the action; a rule which was carefully reviewed and re-asserted in the Pond Case (
What was there to affect this plaintiff's ownership in the land and its appurtenant street easements, or to prevent him from bringing this action? He was not a party to any of the antecedent transactions between his predecessors in the title. Nothing of record gave him notice of such an agreement. Upon what inquiry was he put when he purchased the property? The presence of the elevated railroad in the street was not notice of anything to him. It was a trespasser, for whose unlawful acts the law afforded remedies available to the abutting owner. Suppose he had inquired of his grantors and had learned of their agreement with Lathrop, or of Lathrop's suit for damages, would he then have been chargeable with notice of anything which would preclude him from proceeding against the defendants as trespassers upon his easements? *376 Certainly not; for he would have learned of nothing which bound him, or which diminished his property rights under the grant to him. There had been no extinguishment of the easements. They existed and would exist, until properly appropriated and compensation made. The defendants had not acquired them, nor had they been abandoned. Lathrop's action was incompetent for any purpose, except to recover any temporary damages sustained by him. It is impossible to say that Lathrop's acts, when owner, indicated a clear intention to give up his street easements. We may assume that he would have consented to do so, if compensation was made; but that important condition was not met by the defendants' assent. The proper application of the rule would be, to work an extinguishment at law, that the acts of the party entitled to claim the servitude, or the easement, must be accompanied by the intention to extinguish and be followed by action upon it on the part of the party claiming adversely. The latter must close with the intent. It must be a joint intent of all the parties interested to get rid of the easement. (Corning v. Gould, 16 Wend. 530, 538.)
I think it quite needless to continue the discussion of the subject. I think the plaintiff was under no obligation to look beyond the records for anything affecting his title to the land he was about to purchase. As matter of fact, the defendants were trespassers, with no right as yet to occupy the easements of the abutting owner. The argument that Lathrop's demand in the action, however irrevocable, was equivalent to an election to abandon the easements does not commend itself. At most, it could be regarded as amounting to a conditional declaration of an intention to abandon. That would be insufficient, (2 Washb. Real Prop. 341), and it cannot be said that the defendants had seasonably acted upon it. Moreover, the importance of discovering from the circumstances the intention of the person, who is claimed to have abandoned his rights, is in its explaining and determining the significance of the act. Unless the intention accompany the act, its value, if the rights of others intervene, is at once affected. Here, *377 the attempted relinquishment of the easements appurtenant to the property by Lathrop was years after they had ceased to be his and when they had become the property of the plaintiff. The defendants were bound to know that they had passed to this plaintiff and they settled with Lathrop at their peril; if, in truth they did suppose that he could release these property rights to them. The terms, in which the release was couched, leave a not indistinct impression upon the mind that it was obtained and accorded for what it might be worth. Lathrop was in no position to release the easements, as of any time, and as against the then owner of the land his act was of no force. The only value of the release was as a settlement with Lathrop for the damages sustained by him during his ownership.
I think the judgment below was right and that it should be affirmed, with costs.
All concur (PECKHAM and O'BRIEN, JJ., in result).
Judgment affirmed.