Welsh v. Taylor

7 N.Y.S. 376, 4 Silv. Sup. 340, 27 N.Y. St. Rep. 301, 54 Hun 636, 1889 N.Y. Misc. LEXIS 1090

Opinion

Daniels, J.

The appeal from the judgment in thife action has already been heard and decided by this general term, (Welsh v. Taylor, 2 N. Y. Supp. 815.) But since that decision was made the case of Snell v. Levitt, 110 N. Y. 595, 18 N. E. Rep. 370, has been published, and by that decision it has been held that an easement acquired by grant may be lost by actual abandonment during a shorter period than that of 20 years. In this action it has been found, as a matter of fact, that the owners of the adjacent property, after-wards conveyed to the plaintiff, had by their acts manifested an intention to abandon, and did abandon, the right to use the alley over which the existence of the easement was alleged on behalf of the plaintiff as the foundation of his right of action. How far the application of this principle is intended to extend has not been definitely declared in the case last referred to; but the general proposition has been announced as supported by the law, that an actual abandonment or non-user of the easement for less than 20 years may result in its extinguishment: and, following this principle, it was deemed to be necessary to order a reargument of the present appeal. This reargument has taken place, and the determination of the court upon it is that, under this decision of the court of appeals, the judgment in this action should be aflirmed, leaving the plaintiff to present the case there, if it can be so far distinguished from the decision there made as to entitle him to maintain this action. The judgment from which the appeal has been taken will accordingly be affirmed. All concur.