Appelgate v. Morse

7 Lans. 59

• Court: New York Supreme Court
• Decided: May 15, 1872
• Status: Published

Opinion

Mullin, P. J.

The appellant makes a preliminary objection that the judgment, as entered, does not conform to the decision of the court.

I do not discover that there is any material difference between the judgment, as ordered, and as entered. The latter gives the relief more minutely than it is stated in the decision, but that is unobjectionable so long as it does not enlarge the relief intended to be given.

It would have been better, perhaps, had the judgment declared that the plaintiff’s right to the water should be enjoyed in common with the defendant, but it gives the plaintiff the right to the use of water, as claimed in the complaint, and the right so claimed is in common with the defendant.

The defendant may, if she so elects, amend the judgment so as to restrict the plaintiff’s right to the use of the water to be in common with her.

The appellant insists that the decision that the plaintiff is entitled to the use of the water by prescription is erroneous, and for it the judgment should be reversed.

The finding of fact is that by some arrangement between Wilson, who constructed the well on defendant’s lot, and Schofield, who owned and occupied plaintiff’s lot, the well was owned in common, and the owners of plaintiff’s lot have ever since continued to use it in common with those owning defendant’s lot under claim of right.

Had the court found that there was a grant of the right to use the well all doubt would have been removed. But the fact found amounts to mere licénse.

Prescription is defined, in a work entitled Law of Easements, to be a title acquired by possession had during the time and in the manner fixed by law. (Law of Easements, 861.)

In the same work, at page 121, it is said: “ The effect of the user would be destroyed if it were shown, that it took place by the express permission of the owner of the servient tenement, for in such case the user would not have been had with the intention of acquiring or exercising a right.”

Again, at page 125, it is said: “Enjoyment had under a license or permission from the owner of the servient tenement confers no right as to the easement.” (Angelí on Watercourses, §§ 213, 216.)

The author, in the section last cited, says: “ The enjoyment of an easement had under the license or permission ffiom the owner of the servient tenement is consistent with the right of the latter, and consequently confers no right to the easement.”

If this is the law, the finding of fact is fatal to the judgment.

The plaintiff in her complaint put her right to the use of the water of the well on the ground that she owns one-half of the land in which it is dug.

If she could get the water from the part of the well on her own land, her right for any interference with the right is at law, not in equity.

If, in order to obtain the water, she must intrude upon the land of the plaintiff, either on or below the surface, so as to constitute her right an easement, she should so allege in her complaint, as a court of equity can afford her relief by restraining defendant from interfering with her in the exercise of the right, but it cannot give her the relief she would be entitled to in an action of trespass or ejectment.

On the case as made in the complaint, and on the facts found by the court at Special Term, I am of opinion the plaintiff is not entitled to the relief granted, and the judgment must therefore be reversed and a new trial granted, costs to abide event.

Judgment reversed.