Welsh v. Taylor — 27 N.Y. St. Rep. 301

Majority

p. 301

Henry Welsh, App’lt, v. John Taylor, Resp’t.^[1]

(Supreme Court, General Term, First Department,

Filed November 7, 1889.)

Headnote

Easement—May be lost by non-usee eob less than twenty yeaes.

An actual abandonment or non-user for less than twenty years of an easement acquired by grant may result in its extinguishment.

(Snell y. Levitt, 110 N. Y., 595 ; 18 N. Y. State Rep., 611, followed.)

Beargument of appeal.

Martin J. Keogh, for app’lt; John E. Parsons and Samuel Riker, for resp’t.

The appeal from the judgment in this action has already been heard and decided by this general term, Welsh v. Taylor, 19 N. Y. State Rep., 735. But since that decision was made the case of Snell v. Levitt, 110 N. Y., 595 ; 18 N. Y. State Rep., 611, has been published, and by that decision it has been held that an easement acquired by grant may be lost by actual abandonment during a shorter period than that of twenty years. In this action it has been found, as a matter of fact, that the owners of the adjacent property, afterwards conveyed to the plaintiff, had by their acts manifested an intention to abandon, and did abandon, the right to use the alley over which the existence of the easement was alleged on behalf of the plaintiff as the foundation of his right of action. How far the application of this principle is intended to extend has not been definitely declared in the case last referred, to; but the general proposition has been announced as supported by the law, that an actual abandonment or non-user of the easement for less than twenty years may result in its extinguishment; and, following this principle, it was deemed to be necessary to order a reargument of the present appeal. This reargument has taken place,

p. 302

and the determination of the court upon it is that, under this decision of the court of appeals, the judgment in this action should be affirmed, leaving the plaintiff to present the case there, if it can be so far distinguished from the decision there made as to entitle him to maintain this action. The judgment from which the appeal has been taken will accordingly be affirmed.

Yan Brunt, P. J., and Brady, J., concur.