57 N.Y.S. 198 | N.Y. App. Div. | 1899
At the close of the plaintiffs’ evidence the court was asked to dismiss the complaint on the grounds, among others, that the evidence shows that this ditch has been in existence for more than twenty years and that these people have entered on it and cleaned it out during that time; that it has been used as adrain for their land, and they are entitled to go there by virtue of adverse possession for more than twenty years; that the defendant was in the act of repairing the ditch within his perfectly legal rights at the time this occurred. The motion was denied and an exception was taken.
Evidence was given by the defendant tending to show that nothing more was done on the occasion complained of “ than was necessary for the proper cleaning out of the ditch.” The ditch begins on the land occupied by the defendant and turns towards the plaintiffs’ farm, and the ditch has been there twenty-five years or more,
At the close of the evidence the defendant’s counsel asked the court to direct a verdict for the defendant of no. cause of action on the ground that it appeared from the uncontradicted evidence that this ditch had existed there for more than twenty years; that these people had cleaned it out at different times when it needed it, and no facts had been shown to rebut the presumption of adverse user. The motion was denied and the defendant took an exception.
The defendant’s counsel asked the court to charge the jury “ that if they find from the evidence that this ditch has existed in its present location for a period of more than 20 years, and that it has been used openly, notoriously and uninterruptedly to the knowledge of the owners of this land * * * for more than 20 years, and has drained Mr. Gaul's land; that Mr. Gaul has acquired an easement thereto and a right to drain through that ditch and to enter upon and clean the ditch when the ditch needs cleaning ”
The court refused the request, and the defendant took an exception. We think that the request was a reasonable one and presented a question which ought to have been submitted to the jury, and that the exception presents an error. Subsequent requests were presented which were yielded to by the judge, which are apparently inconsistent with his refusal of the one which we have quoted; and the record shows that the jury retired to deliberate on their verdict and returned into court evidently in an uncertain and confused state of mind, possibly induced by the apparent inconsistencies of the judge in the course of his refusal and subsequent yielding to some requests which appear in the case, and the foreman of the jury said: “We want to find out whether he had any right in the ditch or not.” In response to that question the court said: “ The court virtually, upon denying the motion for a nonsuit, held that by law they had no
We'think the learned trial judge ought to have submitted the question to the jury as to whether there had been an open, notorious and continued occupation or user of the ditch adversely and under claim of right for more than twenty years, and that if such user-had occurred the defendant and his grantor had an easement in the premises and were entitled to continue to enjoy it by reasonably removing obstructions from the ditch.
In Ward v. Warren (82 N. Y. 265) it was held: “Where the user has been, for the requisite time, open, notorious, visible, uninterrupted, undisputed and under claim of right adverse to such owner, he is charged with notice and his acquiescence is implied; the law presumes a grant from him and such presumption is conclusive:”
In Nicholls v. Wentworth, (100 N. Y. 455) it was held: “ The owner of one tenement may acquire an easement over the premises of another by an open, notorious and continuous user, for more than twenty years, under a claim- of right, adverse to the owner and with his knowledge and acquiescence.”
The cases to which reference has been made were referred to in Bushey v. Santiff (86 Hun, 385), and it was there said in the opinion delivered, viz.: “ Where, however, the user, for the requisite time, has been open, notorious, visible, uninterrupted, undisturbed and under claim of right adverse to such owner, he is charged with notice and his acquiescence is implied.” In that case the question of whether there was a prescriptive right was submitted to the jury.
The case in hand differs from White v. Sheldon (35 Hun, 193) as in that case the evidence was such as to justify a finding that user was a mere privilege enjoyed by leave of the owner of the servient tenement, and not adverse in its nature.' No such evidence was given in the case now before us.
The doctrine of the principal cases to which we have referred was reasserted in Treadwell v. Inslee (120 N. Y. 465). In that case, however, the drain was not visible or apparent to an owner of property ; and it was said that the adverse user did not begin to run until it was brought to the notice of the defendant’s testator in 1815, and, therefore, it was apparent that at the time of the commencement of the action the user had not ripened into a title. That case, therefore, differs from the one in hand.
The learned judge in effect told the jury that the only question before them was one of damages. In that respect we think he was in error, and that there should be a new trial.
All concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.
