185 A.D. 74 | N.Y. App. Div. | 1918
Lead Opinion
This action was brought to restrain the defendant from entering upon premises of the plaintiff and removing waste slate piled thereon. The premises, consisting of a lot of five and a half acres, for.many years have been used as a slate quarry. They were conveyed in the year 1871 to the predecessors of the plaintiff by one Frederick Ensign and wife, and were carved out of a farm. of one hundred acres then owned by Ensign. As an appurtenance to the lot conveyed the grantors, by the same deed, also conveyed a
After the grant of the five and a half acre lot, Ensign had no right to quarry, or to compel others to quarry thereon. When, however, quarrying was done, he had the right to go upon the lot and take away the waste slate, not suitable for market, which was thrown aside. Doubtless, this waste slate was real estate. It had once been severed from the land, but after severance, when the market slate had been removed, it was discarded and thrown broadcast upon the lot. It became real estate as much as would stone drawn from the fields to the fence lines, as manure taken from piles and scattered upon the ground, as tailings from a mine, and, being real estate, title thereto did not pass to Ensign until by removal he again severed it from the ground. He had title, therefore, prior to such removal, not to concrete property but to rights thereover. These rights were not easements but profits a prendre. (Post v. Pearsall, 22 Wend. 433.) Although the defendant is the successor in title of Ensign, both as to the farm retained by him, and as to any rights in the waste slate passing to his heirs and remaining unextinguished, it is, nevertheless, important to determine whether these rights were reserved to be held in gross or as appurtenant to the farm. If the former were the case, abandonment thereof would depend upon the conduct of Ensign and his heirs; if the latter were the case, upon the conduct of those having title to the farm.
In reaching his conclusion that these rights were appurtenant, Mr. Justice Cochrane, who also writes in this
In Grubb v. Guilford (4 Watts, 223) there was a conveyance of twenty acres with the right to enter upon lands remaining in the grantor to search for, mine and carry away iron ore. It was held that this was a profit a prendre not appurtenant to the land conveyed. The reason given was that it was in no manner necessary to the occupation of the twenty acres, and did not concern or affect it at all. This case is cited with approval in Huntington v. Asher (96 N. Y. 611). In Bailey v. Stephens (12 C. B. [N. S.] 91) the defendant sought to
There is no evidence in this case of any use of waste slate upon the farm prior to the grant; of any intent so to use it; of any scarcity of stone upon the farm; of any projected farm improvement which would make its use convenient. There is no word in the deed expressing an intent to reserve the waste slate for the farm, or for the grantor as the owner of the farm. There is neither word nor fact which indicates that the purpose animating the reservation was particular rather than general. The lot was sold to become a quarry in a great slate producing region, and the production of waste slate in quantities far exceeding the possible needs of a single farm must have been anticipated. Its reservation for purposes other than those of the farm must, therefore, have been intended. The case is stronger than Pierce v. Keator for the use of hay upon a farm is commonly essential to its operation, whereas the use of slate is not. Indeed the position of this defendant is wholly inconsistent. It justifies its title through an assertion of a farm need of the waste slate, but it intends to use the waste otherwise than upon the farm in an industrial enterprise. It seems to me that upon all the authorities the rights reserved were not appurtenant to the farm but were in gross, and belonged to Ensign and his heirs and assigns generally.
The rights to the waste slate were not exercised by Ensign from the year 1884, when he sold his farm, to the year 1887, when he died. Nor were they exercised by his heirs from the year 1887 to the year 1917. Thus for thirty-three long years no one having title availed himself' of the rights to remove waste slate. It is true that Ensign’s successors in title to the farm occasionally gathered waste slate from the
The judgment should be reversed.
All concurred, except Cochrane, J., dissenting, with an opinion, in which John M. Kellogg, P. J., concurred.
Dissenting Opinion
The reservation in the Ensign deed was to “ himself and his heirs and assigns.” In Pierce v. Keator (70 N. Y. 419) the reservation was personal to the grantor and the court said: “ It might have been regarded in the nature of an easement if the reservation had been made to Pierce, as owner of the farm, or on account of being the owner, but the language
I think, therefore, the judgment should be affirmed.
John M. Kellogg, P. J., concurred.
Judgment reversed on law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves of the finding that there was not an abandonment.