Huntington v. Asher

New York Supreme Court

Huntington v. Asher

33 N.Y. Sup. Ct. 496

DecidedFebruary 15, 1882

StatusPublished

This text of 33 N.Y. Sup. Ct. 496 (Huntington v. Asher) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Huntington v. Asher, 33 N.Y. Sup. Ct. 496 (N.Y. Super. Ct. 1882).

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Opinion

Gilbert, J.:

It is a familiar rule that the owner of a dominant estate to which an easement in another’s land has been annexed, has a right to enter [498]*498upon the servient estate and make necessary repairs, and to remove such obstacles as interfere with the beneficial enjoyment of the easement. We are of opinion, however, 1. That the right granted to the defendant’s grantor was not such an easement, and, 2. That such right was not transferred to the defendant by the conveyance under which she claims; in other words, that it is not a right which is appurtenant to her estate. A right by which one person is entitled to remove and appropriate for his own use anything growing in or attached to or subsisting upon the land of another, for the purpose of the profit to be gained from the property thereby acquired in the thing removed, has always been considered in law a different species of right from an easement. Such right is a privilege, and so is an easement. But the latter is a privilege without profit, and is merely accessorial to the rights of property in land, while the former is the reverse. If granted to one in gross, it is so far of the character of an estate or interest in the land itself, that it is treated as such. (Per Oh. Walworth, Post v. Pearsall, 22 Wend., 425; God. on Easement, 5 et seq., 11; Washburn on Easement, 11 et seq., 312, 521, 528.) It may be created by grant and held in fee for life or for years.- Whereas an easement proper in gross cannot be created by grant so as to be assignable or inheritable. (Ackroyd v. Smith, 10 C. B., 164, 187; Post v. Pearsall, supra; Tinicum Fishing Co. v. Carter, 61 Penn. State, 38.)

The grant in this case is of “ the exclusive right to take ice from the pond ” of the grantor. Such a right is in no way connected with the beneficial enjoyment of the one-half acre of land granted by the same conveyance. The effect of that conveyance would have been the same if the grant of the privilege had been made by a person other than the grantor, or if the grant of the privilege had been one to take ice from Rockland lake. The conveyance to the plaintiff merely transferred to her the one-half acre of land, with the appurtenances thereof. It contains no grant of the privilege in question.

The judgment must therefore be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.

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Gilbert, J.:

It is a familiar rule that the owner of a dominant estate to which an easement in another’s land has been annexed, has a right to enter [498]*498upon the servient estate and make necessary repairs, and to remove such obstacles as interfere with the beneficial enjoyment of the easement. We are of opinion, however, 1. That the right granted to the defendant’s grantor was not such an easement, and, 2. That such right was not transferred to the defendant by the conveyance under which she claims; in other words, that it is not a right which is appurtenant to her estate. A right by which one person is entitled to remove and appropriate for his own use anything growing in or attached to or subsisting upon the land of another, for the purpose of the profit to be gained from the property thereby acquired in the thing removed, has always been considered in law a different species of right from an easement. Such right is a privilege, and so is an easement. But the latter is a privilege without profit, and is merely accessorial to the rights of property in land, while the former is the reverse. If granted to one in gross, it is so far of the character of an estate or interest in the land itself, that it is treated as such. (Per Oh. Walworth, Post v. Pearsall, 22 Wend., 425; God. on Easement, 5 et seq., 11; Washburn on Easement, 11 et seq., 312, 521, 528.) It may be created by grant and held in fee for life or for years.- Whereas an easement proper in gross cannot be created by grant so as to be assignable or inheritable. (Ackroyd v. Smith, 10 C. B., 164, 187; Post v. Pearsall, supra; Tinicum Fishing Co. v. Carter, 61 Penn. State, 38.)

The grant in this case is of “ the exclusive right to take ice from the pond ” of the grantor. Such a right is in no way connected with the beneficial enjoyment of the one-half acre of land granted by the same conveyance. The effect of that conveyance would have been the same if the grant of the privilege had been made by a person other than the grantor, or if the grant of the privilege had been one to take ice from Rockland lake. The conveyance to the plaintiff merely transferred to her the one-half acre of land, with the appurtenances thereof. It contains no grant of the privilege in question.

The judgment must therefore be affirmed, with costs.

Dykman, J., concurred; Barnard, P. J., not sitting.

Judgment affirmed, with costs.

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33 N.Y. Sup. Ct. 496, Counsel Stack Legal Research, https://law.counselstack.com/opinion/huntington-v-asher-nysupct-1882.

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