p. 827Appeal from a judgment entered upon the verdict of a jury rendered in the county court of Rensselaer county.
John Millard and his brother Elijah Millard, from the year 1836 until about the year 1850, were tenants in common of a farm of about 170 acres, situate in the town of Berlin, county of Renssalaer and state of New York, on which was an apple orchard. About the latter named year, the brothers being tenants in common, made a paroi partition of the premises, agreeing that Elijah should have seventy acres and John the remaining 100 acres, on which the orchard was situated. It was further agreed that Elijah, his heirs and assigns, should have the right to enter yearly the portion partitioned to John, and gather one-half of the apples from the orchard. The occupancy of the premises was continued in accordance with this agreement, without objection, until the death of Elijah in 1854.
Elijah left a will, which was admitted to probate in 1856 by the surrogate of Rensselaer county.
By this, his share of the land was devised to Elijah J. Millard, his nephew, the defendant in this action. The will also contained a clause, giving to the before mentioned devisee all the testator’s right in the apples growing or to grow on the other portion of the premises. Under this will he went into possession of the seventy acres, and each year went upon the other part of the premises and took therefrom one-half of the yield of apples, until the year 1861, when he conveyed all his right, title and interest therein, together with the appurtenances thereunto belonging, to Mary E. Millard, his sister-in-law. Since that time, each year until 1884, the defendant has gone upon the land upon which the orchard is located and gathered therefrom one-half of the yield of apples, under the authority of his grantee. John Millard, the original co-tenant, to whom the 100 acres was allotted upon the partition, conveyed his share March 23, 1870, to his son, William A. Willard, who on March 25, 1880, by a deed, in which his wife joined, conveyed the same to this plaintiff.
In the fall of 1884, this plaintiff objected to the defendant’s taking the apples, as was his custom, and in December of that year brought an action against him in a justice’s court.
Henry L. Landon, for the app’lt; Samuel Foster, for the resp’t.
If the right to enter and take the apples in question be deemed to be a mere license, resting in paroi, it was revokable at the pleasure of the owner of the inheritance. This is settled in Cronkhite v. Cronkhite ( 94 N. Y., 323 ), and in many other cases. It is doubtful whether this
p. 828right, however considered, not evidenced by any valid grant or reservation giving it effect as a grant, can be regarded and treated in law as an easement.
Wiseman v.
Lucksinger, 84 N. Y., 31 ;
Pierce v. Keator, 70 N. Y. 419 ;
Huntington v.
Asher, 96 N. Y., 604 . It is insisted that the right, being coupled with a grant, or its equivalent growing out of a paroi partition between former owners and supported by a consideration, constitutes an easement attached to the seventy acres as the dominent tenement, resting upon the 100 acres is the servient tenement. The difficulty is that there was no valid grant in writing of the right or privilege here asserted by the defendant. It rested in paroi merely. It was not contained in any grant or declared by any reservation in a grant; it was not, as it could not be, made a matter of record. Consequently the recording act supervened under which the plaintiff here may claim and have protection.
John Millard, in 1870, conveyed the 100 acres to William A. Millard, by deed; and the latter, in 1880, conveyed the premises by deed to the plaintiff. Neither of these conveyances contained any reference to the right insisted on by the defendant; and both deeds were duly acknowledged and recorded. There was nothing in either of these conveyances, nor was there any thing apparent in the use of either of the tenements by their respective owners, showing or indicating the actual existence of the right now insisted on. The plaintiff’s record title gave no indication of its existence; and he was bound only to wdiat the record disclosed as to the title of the premises conveyed to him, with what was apparent in its occupation and use.
It follows, therefore, that the plaintiff, as the case is made on the record before us, is protected in his absolute title by the recording act. We heed consider no other question in the case.
Judgment affirmed with costs.
Learned, P. J., and Landon, J., concur.