[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 460
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 461 The finding of the Special Term that the plaintiff's testator became the owner of a right of drainage across the defendant's lot by the deed from Vane and wife cannot be sustained.
The earliest conveyance by Williams of any of the property affected by the drain in question was of defendant's lot to Davidson in 1845. That conveyance contained no reservation of the use of any drain for the benefit of the lots lying west of it, and it cut off all such right from any lots subsequently conveyed by Williams.
Williams continued to own the plaintiff's lot until November, 1849, and his conveyance of that lot in that month to Vail did not purport to convey any right to the use of the drain.
Whether or not a drain existed at that time does not appear in the evidence, and is not important or material in view of the fact that the right to use it was neither reserved in the deed to Davidson or conveyed by the deed to Vail. *Page 464
The earliest mention of a drain in connection with plaintiff's property is in the deed from Vail to Rennie in 1851. That deed did not locate it or describe it as running across defendant's lot. The right to such use was conveyed to Vane, and he conveyed it to the plaintiff's testator in 1860. No deed from any owner of defendant's lot prior to 1860 is proven, conveying any such right, and it is apparent that at that date no title by user could have been acquired by the owner of plaintiff's lot. The finding quoted, therefore, appears to be without any evidence to sustain it.
The right to the use of the drain for the benefit of the plaintiff's lot (if such can be sustained) does not rest upon a conveyance thereof, but upon a title obtained by a use adverse to the defendant.
The Special Term found as a fact that prior to May, 1885, when the plaintiff's testator first discovered that the drain was cut off, he had used and enjoyed such right of drainage for more than twenty years under claim of right.
If that finding can be sustained, it is not disputed that the judgment of the Special Term was right, and the only question necessary to be considered upon this appeal is whether such finding has evidence to support it.
The conveyance to Munsion, plaintiff's testator, was in September, 1860. He testified that he first knew of the drain when he took possession of the property. That it commenced at his house, ran southerly to the rear of the lot, thence easterly across the defendant's lot to the lot of George Carrol, where it entered the sewer leading southerly to Orange street.
That is the earliest date at which the evidence fixes the existence of the drain across defendant's lot, and there is no evidence that at that time its existence was known to the owner of that lot. John Reid, defendant's testator, purchased the lot in May, 1873. Munsion testified that in 1875 he paid $5 to John Reid's brother for repairing the common sewer running across Flood's lot to Orange street, and, assuming that John Reid was cognizant of that payment, and that it permits an inference that he must then have known that the drain *Page 465 from plaintiff's lot to the common sewer crossed his property, that is the earliest date at which the evidence charges him with knowledge of the fact.
These facts do not establish an adverse user.
To establish an easement in the land of another by prescription or adverse use, it is essential that the use and claim of right be actually known by the person against whom the adverse user is claimed, or it must be so visible, open or notorious as that knowledge of such use or claim will be presumed. (Ward v.Warren, 82 N.Y. 265; Parker v. Foote, 19 Wend. 309-311;Nicholls v. Wentworth, 100 N.Y. 455; Washb. on Ease. [3d ed.] 160; Hannefin v. Blake, 102 Mass. 297.)
This drain was not visible or apparent to an owner of property, and the adverse user did not begin to run until it was brought to the notice of the defendant's testator, in 1875, and it is apparent that, at the time of the commencement of this action, such user had not ripened into a title.
Nor can the right of drainage be sustained upon any claim that the drain existed at the time of the deed to Davidson.
If Williams had constructed this drain for the benefit of all the lots on Patroon street, the right, so far as it related to the lots west of defendant's lot, was lost upon the conveyance to Davidson.
As already stated, the drain was not an apparent or visible encumbrance, and, in the absence of actual knowledge of its existence, Davidson had a right to rely upon appearances and to believe that the apparent condition was the real one.
In such a case as this the grantee takes his land according to the terms of his deed, and if the deed gives no notice of any right reserved in favor of the grantor across the lot conveyed, the latter is freed from any servitude theretofore existing, and the grantor is estopped, by his covenants, from asserting any. (Butterworth v. Crawford, 46 N.Y. 349; Huycks v. Andrews, 113 id. 81.)
The appellant's claim that the owner of defendant's lot is chargeable, by the record, with constructive notice of the existence of the drain from the date of the deed to Davidson, cannot be sustained. *Page 466
The deed to Davidson gave no notice that the lot thereby conveyed was burdened with a servitude in favor of any lots of Williams on the west. It conveyed the right to the use of a drain across the grantee's lot on the east, leading to the common sewer to Orange street. This was beneficial to the lot conveyed. But there is no intimation that lots on the west were to enjoy a similar benefit, or that Davidson's lot was burdened with a right of drainage in their favor. None of the subsequent deeds for this lot recognized any servitude in favor of plaintiff's lot.
The fact that the deed to Davidson was not recorded until May, 1875, long after the record of the deed from Williams to Vail, is not a material fact in the record.
If the deed to Vail had conveyed a right of drainage across Davidson's lot, the failure to record the Davidson deed might have been important. But, as already pointed out, this deed did not purport to grant or convey any right of drainage.
It is only when two conveyances purport to convey the same property that a subsequent purchaser obtains a priority over an earlier grantee by reason of priority of the record of his deed.
Neither was the defendant or his grantor chargeable with notice of the contents of the Flood deed. That conveyance was subsequent to both the deeds to Davidson and Vail. It did not appear in the chain of title to either lot; and, if it did, I fail to see how the fact that Flood's lot was burdened with the right of drainage in favor of all the lots on Patroon street could alter the rights which the owner of the defendant's lot acquired under the deed to Davidson.
The order must be affirmed and judgment absolute rendered for the respondents, with costs.
All concur.
Judgment affirmed. *Page 467