The reservation in the Ensign deed was to “ himself and his heirs and assigns.” In Pierce v. Keator (70 N. Y. 419) the reservation was personal to the grantor and the court said: “ It might have been regarded in the nature of an easement if the reservation had been made to Pierce, as owner of the farm, or on account of being the owner, but the language *81reserves the right to the parties of the first part, not to their heirs and assigns, nor to the owners of the farm, nor for the benefit of the farm or such owners.” Furthermore in that case the nature of the thing reserved indicated that it was not appurtenant to the remainder of the farm unsold. The court continued: “ As the terms of the reservation indicate a personal privilege, and as there is nothing in the nature of the right reserved connecting it in any manner with the ownership or use of the remainder of the farm, there seems no alternative but to apply the established rules and recognized legal distinctions to the transaction. * * * The case is destitute of any circumstance tending to establish an intention to affix the right as appurtenant to the remainder of the farm.” Here the only use which could be made of the thing reserved was in connection with the remainder of the farm. This waste material in 1871 when the reservation was made had no commercial or market value. It was not, and could not be sold to other parties. It was used solely on the farm by Ensign and his successors in title. At the present time this rubbish has a commercial value. But the question must be tested by conditions as they existed in 1871. For twenty-five years thereafter it was used intermittently on the farm exclusively by the various owners as the evidence discloses and as the trial justice has found. Whatever value this waste material had was in connection with the farm. It was, therefore, an appurtenant to the farm. (Huntington v. Asher, 96 N. Y. 604, 610; Greenwood Lake & Port Jervis R. R. Co. v. New York & Greenwood Lake R. R. Co., 134 id. 435, 440.) Such appurtenance passed under the deed from Ensign to Potter. The defendant, therefore, as the successor in interest of Potter takes title independently of the deed from the Ensign heirs and as Potter and his successors have used the waste material on the farm there has been no abandonment.
I think, therefore, the judgment should be affirmed.
John M. Kellogg, P. J., concurred.
Judgment reversed on law and facts and new trial granted, with costs to the appellant to abide the event. The court disapproves of the finding that there was not an abandonment.