16 Barb. 150 | N.Y. Sup. Ct. | 1853
Two principal questions are made on the part of the defense in this cause. The first turns on the construction of the deed executed by Ezekiel Jewett and wife to Ezekiel Jewett, jun. dated the 20th of March, 1830, and recorded on the 1st of May in the same year. The deed conveys the watercourse, and by clear implication the water which it was intended to conduct to the mill mentioned in the pleadings and testimony. And the only material question is as to the duration, or extent, of-the grant. The granting part of the deed contains the words, to him “ and his heirs, executors and assigns forever”—words of a
There is a material distinction between an easement acquired by prescription, and one created by deed. (Angell on Watercourses, ed. of 1850, p. 269, § 252.) This writer says, “ An easement, to become extinguished by disuse, must have been acquired by use ; and the doctrine of extinction by nonuser does not apply to servitudes or easements created by deed. In the one case, mere disuse is sufficient; but in the latter there must not only be disuse by the owner of the land dominant, but there must be an actual adverse user by the owner of the land servient. Accordingly it was held in White v. Crawford, (10 Mass. Rep. 183,) that a grant of a right of way was not lost by a mere nonuser of twenty years. And in the case of Arnold v. Stevens, (24 Pick. 106,) that a grant of a right to dig ore was not lost by the neglect of the grantor, for forty years, to exercise the right, without an adverse enjoyment on the part of the owner
Had the defendant the right which he assumes to have, his true course was to have brought his action, instead of committing the acts complained of in this suit; and without discussing his right to redress his own wrongs by force, in the way he chose to do it, it is enough to say that the assumption that he had any right to this water-course, or any right to commit the acts for which this action was brought was founded on an erroneous conclusion as to his legal rights. There was no conflicting evidence
Gridley, Pratt, W. F. Allen and Hubbard, Justices.]
Hew trial denied.