Claimant is the owner of premises in the village of Waterloo near the outlet of Bear race, and in connection with said premises has title by grant to take from said race sufficient water * * * to make and be equivalent to two full runs of stone.” In the year 1913 the State appropriated for canal purposes a portion of Bear race a short distance east of Washington street, and erected on the land so appropriated a structure which made it practically impossible for water to flow through the race to claimant’s property. For such appropriation and interference with the claimant’s easement in Bear race this claim is made. It has been dismissed on the ground of abandonment by the owner of the easement.
It does not appear who was the owner of the servient estate thus appropriated. The finding of the court is that “ title to this parcel was outstanding in third parties.” The State by its appropriation has succeeded to the rights of those third parties and the question for determination, therefore, is whether as between them and claimant the latter has lost by abandonment its easement in Bear race which existed by grant.
Bear race extends from a point in the Seneca river for a considerable distance thruogh the village, and discharges into a lower level of the river. It was constructed more than a hundred years ago by Samuel Bear who then owned all of the land through which it extends. This land was subsequently subdivided and the water of the race was used to furnish power to different mills along the same. Prior to the year 1879, there existed on the premises of the claimant one or more mills operated by hydraulic power from the race. In that year those mills fell into dilapidation and disappeared and since that time no use whatever so far as the evidence discloses has been made of the premises in question. Between the years 1879 and 1883 a stone bulkhead, was built across *351Bear race above and west of Washington street. There is no "evidence as to who built it or the circumstances or conditions under which it was constructed. Chapter 325 of the Laws of 1888 and chapter 461 of the Laws of 1889 authorized the Superintendent of Public Works to dredge and excavate Seneca river and “ the old Bear Race ” to Washington street so as to admit the passage of canal boats therein “ subject, however, to all the other rights of owners of water and waterpower in said race, and said channel shall thereafter be a public highway for the purposes of navigation only.” Pursuant to this legislation the State in 1890 improved the upper end of Bear race west of Washington street by widening and deepening the same. The old bulkhead was removed and in its place was constructed a new bulkhead immediately east of Washington street, but west of the appropriation of 1913. The legislation did not authorize the State to construct any bulkheads and there is no evidence or finding that the State did make any such construction. The finding Of the court is “ that at or about the time of the said improvements either the State or other interested parties removed the said bulkheads and constructed in place thereof new bulkheads in the Bear Race just below (east of) Washington Street.” The effect of these bulkheads was to prevent the flow of practically all water below the same and to increase the volume of water above the same, which increased volume has been enjoyed and used by the owners of the water rights and privileges at the upper end of the race above the bulkheads.
Abandonment is primarily and essentially a question of intention. “ Intention is the first and paramount object of inquiry; for there can be no abandonment without the intention to abandon. * * * There must be a clear, unequivocal, and decisive act of the party to constitute abandonment in respect of a right secured — an act done which shows a determination in the individual not to have a benefit which is designed for him.” (1 C. J. 7.)
So in Hennessy v. Murdock (137 N. Y. 317, 326) it was said: “ They [the authorities] are all to the effect that where an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such.”
*352In Snell v. Levitt (110 N. Y. 595) there was the most unequivocal evidence of an abandonment, viz., among other things an agreement to release the easement for an actual consideration paid, which agreement was acted upon for more than twenty years, and the creation of a new easement in place of the other.
We think the evidence falls short of showing clearly' and decisively an intention on the part of the owner of the easement to abandon the same. The main circumstance relied on by the respondent is the construction of the bulkheads, and the consequent obstruction of the water for a long period of time. The lapse of time, however, is explained by the fact that the owner has had no occasion to make use of the water since the disappearance of the mills in 1879. (Welsh v. Taylor, 134 N. Y. 450, 458; Hennessy v. Murdoch, 137 id. 317, 325.) As stated there is no evidence showing a single fact as to how or why or by whom either bulkhead was constructed except as it may be inferred that such construction was for the purpose of increasing the water power for the benefit of the millowners at the upper end of the race after the disappearance of the mills below. One Tracy was the owner of the easement when the first bulkhead was constructed and it is not even shown that he had knowledge of its construction. In 1886 he conveyed the premises to the claimant, granting in specific terms the easement in question, indicating thereby a clear lack of intention on his part to abandon the same. There is no evidence- connecting either Tracy or the present owner of the easement or the owners of the servient estate in the slightest degree with the construction of those bulkheads. It may be that they were constructed under an arrangement whereby the water would eventually revert to the owners of the easement or that it would be restored when desired. The owner of the easement may have been entirely willing to permit the appropriation of water as long as such owner had no use for it, but it does not follow that either the servient owners or the State has thereby acquired a permanent right to use the same. It may be that the construction of the bulkheads constituted a trespass or an invasion of the rights of the owner of the easement. The evidence throws no light on the subject. There is no evidence or claim of adverse possession. There is *353no element of estoppel. No one interested in the servient estate would be unjustly affected if the exercise of the easement should be resumed so as to give force to the claim of abandonment. (Snell v. Levitt, 110 N. Y. 595; White v. Manhattan Railway Company, 139 id. 19.) If the servient owners were asserting an abandonment of this easement the mere fact that some third party had obstructed and appropriated the water during a period when the dominant owner had no occasion to use the same, without any evidence as to the circumstances or occasion of such appropriation, or by what authority, contract or arrangement it was accomplished would not sustain such claim by the servient owners especially when as here neither the servient nor the dominant owner is connected with the acts of such third party, and the State stands in no better position, having succeeded only to the rights of the servient owners.
It furthermore appears from the evidence introduced by the State itself that the premises in question, including the easement, are worth $2,300, whereas without the easement they are worth only $500, and in order to sustain this claim of abandonment it is, therefore, necessary to assume that the owner of the premises voluntarily intended to abandon an easement which gave to the property nearly all its value. It is true this evidence relates to the year 1913, and not to the time when the abandonment is claimed to have been made, but still the inference seems reasonable that even at that time the easement must have constituted a large proportion of the value of the property.
The claimant establishing a title by grant, the burden of destroying it rests upon the State. (1 R. C. L. “Abandonment,” § 12; 1 C. J. 11; Hennessy v. Murdock, 137 N. Y. 317, 325.) This burden has not been sustained by evidence sufficiently clear and convincing. The responsibility for any failure of proof rests with the State.
The judgment should be reversed and a new trial granted, with costs to the appellant to abide the event.
Woodward, J., concurred.
Judgment affirmed, with costs.