It was determined by this court on a former appeal (Heughes v. Galusha Stove Co., 122 App. Div. 118) that the action is one at law to recover damages for a nuisance and to procure its removal.
The plaintiffs acquired the easement ill the court or alley in lot 16 and also the right of ingress and egress to South street through the alley in lot 17 by deed. The defendant acquired a like easement in the same way, and each knew of' their location and that they were designed for the common use.of the contiguous owners. These owners for a considerable time used the alleys in common, and no controversy arose. The plain tiffs had alleys over their premises to South avenue, and after.a time made little use of the alleys in dispute. The defendant and its predecessors also had a more accessible outlet to Court street from its premises, and consequently desired to close up the alleys and attach the larger one to its other premises. It claimed that the plaintiffs had lost their easement in the. alleys by abandonment and defendant had acquired title by adverse user.
On the trial the court directed a verdict for the plaintiffs so far as the use pertained to the tract extending into the southwesterly part of lot 16. It submitted to the jury to determine whether the defendant had acquired title by adverse user to the alley as against the northwesterly part of lot 16 owned by the plaintiffs, and the verdict was in favor of the plaintiffs.
The title of the two tracts came from different sources and the proof of user or non-user as related to the two tracts was dissimilar, and the court consequently disposed of the questions in the manner indicated.
The defendant gave proof that more than twenty years prior to the commencement of the action it placed a gate across the entrance to the narrow alley through lot 17 and locked the same, keeping the key in its office; and thereafter there was no user by the plaintiffs either of that alley or the wider one, except at' rare intervals when the key was loaned and permission accorded to the plaintiffs. The ' *818gate had been broken down for some time, and 'the defendant’s manager testified it was rebuilt and assigned the reason therefor as follows: “Father Stuart was alive at that time and lived at the side of the. alley that leads into Washington Square, and he came over and was constantly complaining about disorderly characters going through there in the night time to the Galusha property in the alley, and he requested that I have that gate kept locked so as to stop that and 1 did so.”
The defendant'also claimed that'the plaintiffs intentionally abandoned ¡any right to the use of these alleys. ‘ There had been many years ago -a gate opening from the tract in the southwesterly part of lot' 16 into the larger alley for the use of the plaintiffs that it was- closed long prior to the commencement of the action ; that the plaintiffs piled wood against it and extended their occupancy on the westerly end of lot 15 ten feet into the alley, and no access whatever was left from any part of its premises into the alley. After this claimed purpose to abandon any further use of the alleys the defendant, with the knowledge of the plaintiffs, erected buildings and sheds in the alley on lot 16 and made other expenditures therein . in connection with the operation; of its plant.
Much evidence was offered by the plaintiffs .in .contravention of the testimony referred to. Many witnesses testified to the use of the alleys down to 1890 in the carrying on of the business of the plaintiffs. Mo claim was made during this time of .any adverse user.' The plaintiffs testified that the gate across the alley in lot 17. was erected in 1889 or 1890 in pursuance of a mutual arrangement of the parties and each had a key to the lock. In 1898 access to South avenue was shut off and for several weeks the plaintiffs used both alleys daily. Their evidence also tended to show that there was never any intention to. abandon their right to use the alleys and that, their limited user was merely due to the fact that they possessed other means of egress to another street and that they always paid the taxes on -the alley in lot 16. Without detailing the'¡evidence we’ think on each of these propositions there was a question of fact for the jury.
.Inasmuch as a new trial is to be ordered one or two suggestions may not be amiss. In the first place the mere fact that the plaintiffs had not used the alleys did not operate to extinguish their ease*819ment. (Welsh v. Taylor, 134 N. Y. 450; Smyles v. Hastings, 22 id. 217, 224; Snell v. Levitt, 110 id. 595, 602; Conabeer v. N. Y. C. & H. R. R. R. Co., 156 id. 474, 484; Spencer v. Lighthouse, 114 App. Div. 591, 595.)
The easement was of long standing, available for many years without question and a valuable appurtenant to the premises of the plaintiffs, and they were not required to use the same frequently or at all to retain their right, especially against the defendant which was entitled to a like enjoyment of these alleys and had full knowledge of the joint character, of the -easement. The plaintiffs may have had a more convenient way, or for some other reason abstained from using the alleys. A constant assertion of their right to these alleys was not necessary to enable them to maintain it.
In Washburn on Real Property (Pol. 2 [3d ed.], p. 312) the rule applicable, to an easement by grant is thus stated: “ In the first place there is a marked difference between easements acquired by . express grant and those established by mere user. Here non-user in the former case, even for more than twenty years, will not destroy the right, if the owner of the servient estate does no act, which prevents the use. And if acquired by prescription the nonuser for twenty years may be explained so as to show that the way was not abandoned, as where the party who had the way, had acquired and used a more convenient one, this was held to afford no evidence that he intended to abandon the first whenever he might have occasion to use it again. A mere non-user for any time less than twenty years does not amount to an abandonment of the right, however the same may have been acquired.”
In the second place, in order' to establish an abandonment, there must be definite, unequivocal acts shown declaratory of a clear purpose to cease forever any use or interest in the alleyways. (Hennessy v. Murdock, 137 N. Y. 317.)
This strict rule must obtain, as one may lose his right to the enjoyment of ari easement by abandonment for a much less time than is required to extinguish his interest by adverse possession. The defendant claimed it was induced to erect the buildings on. the larger alley and appropriate it, because the plaintiffs’ acts denoted an intention to renounce any right therein., INon-user may be a circumstance in this aspect of the case bearing upon the pur*820póse of the plaintiffs in obstructing- their own access to the alley. Hon-user, adverse possession and acts which may be construed as indicating a purpose to relinquish are usually intermixed, and for that reason the questions of adverse possession and abandonment ' should be submitted • to a jury. (White’s Bank of Buffalo v. Nichols, 64 N. T. 65, 74.)
If the erection of the buildings and the appropriation of the premises by the defendant were in the exercise of its enjoyment of the easement acquired by grant in common with the plaintiffs, then it- gained no advantage or exclusive title thereby. Presumptively such was the purpose. If this possession of the defendant was permitted because- the plaintiff had no immediate use for the alleys, and without the intention of relinquishing them, there was no abandonment and no adverse user. The adverse possession, in view of the common ownership . of the alleys, in order to be effective, must be open, unequivocal, continuous and equivalent to an ouster of the plaintiffs, and apparent to them that such was the_ purpose of the user and incompatible with the possession which it held in common with the plaintiffs.'
We are not passing upon the weight of the evidence on any of the propositions referred to. They should be submitted to the jury.
We think the 'action is maintainable in its present form, even though the plaintiff Peiffer lias no fee title to a part of the premises. (Bly v. Edison El. Ill. Co., 172 N. Y. 1.)
The plaintiffs have been in occupancy of the premises for many years carrying on the manufacturing business as copartners, and the alleys'are by deed appurtenant to the premises, and they are both interested in the abatement of the alleged nuisance. The plaintiff Heughes owns a part of these lands,-together they own the residue, and all are used for the copartnership business.
The judgment and order should be reversed and a, new trial granted, with costs to the appellant to abide event.
All concurred.
Judgment' and order reversed and new trial ordered, with costs to appellant tó abide event.