part of the lot of land on which it had stood into a street, it abandoned all right to use the chimney of the defendant. This purpose is made still more clear by the fact that the remaining part of the lot was permitted to lie vacant during a series of years. The easement, therefore, was extinguished by operation of law, while the premises were owned by the city, and did not pass to the plaintiff, as appurtenant to the land, by the quitclaim deed under which he holds. The defendant, in taking down the chimney and building a wall to protect her house, rendered unfit for occupation by the act of the city, the plaintiff's grantor, was exercising a right of ownership in a proper manner, and was not invading any right of the plaintiff. Bill dismissed. ON exceptions from the Superior Court. The defendant set up a right of way over the locus in quo, which was the upland mowing field of the plaintiff, for taking off marsh hay from his marsh adjoining the premises on which the trespass was alleged to have been committed, and introduced evidence tending to show that such right of way had been acquired by him and those under whom he claimed, by prescription. The plaintiff claimed that there had never been an adverse or continuous use of the way in question for said purpose, for twenty consecutive years, and introduced evidence tending to show non-user, an abandonment and an interruption of use of the way, and that the line of travel over which the hay had been taken off was not the same each year. The presiding justice instructed the jury as in the opinion appears; and the defendant alleged exceptions. M. P. Frank and P. J. Larrabee, for the defendant. A. A. Strout and G. F. Holmes, for the plaintiff. VIRGIN, J. The defence set up was a prescriptive right of way across the locus. To this the plaintiff replied that, if the defendant had acquired such a right, he subsequently lost it by abandonment. Upon this point the presiding justice instructed the jury as follows: "The question is whether, at any period in the past, the owners of the marsh, by such use as I have described, had obtained a right of way by prescription. Such a right of way, if once obtained, would continue until it was voluntarily abandoned with an intention to abandon it, or until it had ceased to be used for a period of twenty years. "If you should find at some time there was such a right of way, then, upon the question whether it continued or not down to the trespass. this would be the rule. It could be destroyed in two ways; and these two ways are all it is necessary for me to consider. First, by voluntary abandonment of it. If at any time the owners of the marsh had another right of way and gave up this right of way with the intention to abandon it, if that is proved, their right would cease at once. On the other hand, if there is no proof of that, notwithstanding they did not intend to abandon, but did not use it, then that non-use must continue for twenty years before the right by prescription fails. Having once obtained a right of way, they may abandon it at any time they see fit, and if the intention is proved, that is the end of it; or if they cease to use it for twenty years, then their right terminates in that way." By giving this unqualified statement as to the effect of non-user, though some of the authorities sustain it, we think the learned judge erred. For, even if, as suggested by some of the authorities, there is any sound distinction between easements created by deed and those acquired by prescription, the right is not necessarily lost by mere nonuser for twenty years. The better doctrine seems to be that non-user for the period mentioned is evidence of an intention to abandon; but it is open to explanation, and it may be controlled by evidence that the owner had no such intention while omitting to use it, Wash. Easements, 673; 3 Kent Com. (12 ed.) 449, and notes; Farrar v. Cooper, 34 Maine, 394. Exceptions sustained. APPLETON, C. J., WALTON, BARROWS, PETERS, and LIBBEY, JJ., concurred.1 1 See Raritan Water Power Co. v. Veghte, 6 C. E. Green, 463, 480. In Massachusetts, New York, and Pennsylvania it has been held that an easement or profit created by deed cannot be extinguished by mere non user, in contradistinction to an easement created by prescription, which, it is said, can be lost by non user, Arnold v. Stevens, 24 Pick. 106; Bannon v. Angier, 2 All. 128; Owen v. Field, 102 Mass. 90, 114; Barnes v. Lloyd, 112 Mass. 224; Smyles v. Hastings, 22 N. Y. 217, 224; Wiggins v. McCleary, 49 N. Y. 346; Nitzell v. Paschall, 3 Rawle, 76. See Lindeman v. Lindsey, 69 Pa. 93; Erb v. Brown, Ib. 216; Bombaugh v. Miller, 82 Pa. 203. But it has never been decided in either of these States that an easement gained by prescription can be lost by mere non user. See Angell on Watercourses (7th ed.), § 252, note; Veghte v. Raritan Water Power Co., 4 C. E. Green, 142, 156. Nor has it been held that an easement acquired by deed cannot be lost by abandonment without adverse possession. Quære de hoc. WISEMAN v. LUCKSINGER. COURT OF APPEALS OF NEW YORK. 1881. [Reported 84 N. Y. 31.] APPEAL from judgment of the General Term of the Supreme Court in the Fourth Judicial Department, entered upon an order made April 26, 1879, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial at a Special Term. This action was brought to restrain defendant from interfering with plaintiff's alleged right of drainage across defendant's premises, and for damages, &c. The facts appear sufficiently in the opinion. D. Pratt, for appellant. Wm. C. Ruger, for respondent. DANFORTH, J. Although the action is in equity, the plaintiff sought compensation in damages as well as equitable relief. The former was denied to him, but the latter has been granted to the full extent asked for. I can discover no ground upon which it can be approved. The parties are owners of adjoining city lots in the city of Syracuse. The defendant built an underground drain or sewer of plank from the basement of his house, through his own lot and that of one Stern, to Jefferson Street sewer, and afterward and more than twenty-five years last past, the plaintiff," as the trial court finds, "purchased of the defendant the right and easement to drain his premises, by an underground drain and covered sewer, through the defendant's premises, for the consideration of seven dollars, which the plaintiff paid and the defendant accepted;" and thereupon the plaintiff, partly upon his own premises and partly on those of the defendant, built an underground sewer of plank to connect with the sewer of the defendant. The connection was made a short distance from the line dividing the respective lots. It is further found, that "the plaintiff for over twentyfive years enjoyed the privilege as of right of draining his own premises through this sewer, until July 22, 1876, when the connection was cut off by the defendant on his own land.” At that time he denied the plaintiff's right, obstructed the flow of water, "and refused to allow the plaintiff to go upon his premises to maintain and repair the said It is also found that "before this, and in 1873, the plaintiff caused his old sewer to be taken up and replaced with a tile sewer of a capacity greater than that of defendant's sewer, with which it was connected." The plaintiff had also made changes in the form of his privy vault, and the court found that "after this change, and the alteration and enlargement of his sewer by the plaintiff, the filth and sewer. foul water from his privy flowed back into the cellar of the defendant, creating stench and a great nuisance to defendant, rendering his house unfit to live in, and that to prevent such injury to his premises the defendant tore up said sewer." The learned court also found, as a fact, that "no deed of conveyance of said easement or right to drain through said defendant's premises was ever executed by defendant to plaintiff, nor was any written contract agreeing to convey ever executed by defendant or any one for him, except the receipt for seven dollars for the right to drain through defendant's premises." The receipt referred to was not produced upon the trial, but after proving its loss, the plaintiff was allowed to show its contents by his witnesses. Neither of them had seen the paper for many years, and there was some difference as to its form. It is not stated by the court in any other way than in the above finding, but it is given by one witness in these words: "Received of Joseph Wiseman, seven dollars, for the right to drain through my premises;" and this, he says, bore the signature of the defendant. It is adopted by the learned counsel for the respondents in his points, and is the form most favorable to his contention. The trial court found, as conclusion of law and equity, that the plaintiff acquired the right of draining his premises on the defendant's premises more than twenty-five years before the said obstruction, and during all that time enjoyed the same as of right; that the plaintiff is entitled to judgment declaring his said right and easement on the defendant's premises and restraining him from interfering with the plaintiff's enjoyment of such easement; and that the plaintiff is entitled to go upon the defendant's premises to rebuild and repair the same." Judgment was entered accordingly, and it having been affirmed by the General Term, the defendant has appealed to this court. The right awarded to the plaintiff to have his drain pass through the defendant's land is in the terms of the judgment an easement, and for its enjoyment requires that the plaintiff shall have an interest in the defendant's land. In Hewlins v. Shippam, 5 B. & C. 221; 11 Eng. Com. Law Rep. 207, the question was, whether a right to a drain running through the adjoining land could be conferred by parol license, and after the fullest examination it was decided that it could not. The facts in that case are singularly like those now before us, and make the conclusion reached of value upon this inquiry. Cocker v. Cowper, 1 C. M. & R. 418, was a similar case. The plaintiff therein sued for the obstruction of a drain which had been originally constructed at his expense on the defendant's land by his consent verbally given. After it had been enjoyed for eighteen years, the defendant obstructed it. It was contended by the plaintiff that the license, having been acted upon, could not be revoked; but the court held that Hewlins v. Shippam was decisive to show that such an easement cannot be conferred except by deed. To the same effect are authorities cited by the appellant's counsel. It is, therefore, within the Statute "of fraudulent convey ances and contracts relative to land," and could neither be created, granted or declared, except by deed or conveyance in writing (2 R. S., tit. 1, chap. vii. part 2, § 6, p. 134); so that consent, although in writing, will be of no more avail than it would be if given by word of mouth. Indeed this is conceded by the learned counsel for the plaintiff to be so at law; but he contends that in equity the case is otherwise, and says, that "courts of equity give effect to parol agreements for the grant of an easement when founded upon a valuable consideration." Assuming that to be so, we may inquire whether there is anything in this case to call for the exercise of such extraordinary jurisdiction. And first, the contract which equity will regard as equivalent to the grant required at common law or by the Statute must be a complete and sufficient contract, founded not only on a valuable consideration. but its terms defined by satisfactory proof, and accompanied by acts of part performance unequivocally referable to the supposed agreement. In such a case the application of the Statute is withheld, lest by its interposition the mischief would be encouraged which the legislature intended to prevent. There is, I think, little danger of that in the present case. If we look at the situation of the parties at the time the contract was entered into, it will be difficult to infer that they considered the arrangement indicated by the writing to be a permanent one. The lots of both parties fronted upon a public street; in it there was no sewer. If there had been, it cannot be doubted, that as the easiest, cheapest, and most natural way of drainage, they would have used it. As it was, the defendant was obliged, not only to carry his drain the whole length of his lot, but first by license, and then by purchase, acquire the right to cross another lot before an outlet for his drain could be had. His drain was built of plank, at little expense and soon perishable. While in this condition, the plaintiff applies, according to his own testimony, for the privilege of draining his lot into the defendant's drain, and obtains it by the payment of seven dollars. So much the receipt indicates. There is nothing more. Its language is equivocal. It would be satisfied by drainage during the pleasure of the defendant, or during the life of the plaintiff, or until a public sewer should be constructed in the street by which the lot was bounded. There is nothing said as to how long it should continue. And when we consider the heavy imposition that would rest upon the defendant's lot, the annoyance from smells, the perpetual lien and incumbrance, necessarily rendering the land unsalable or of less value in the market, less available for improvement, compelling the defendant so to build that his structure should not interfere with the plaintiff's right of drainage, of inspection, of rebuilding and reparation, we find nothing which permits the inference that the permission indicated by the receipt was intended to be in perpetuity. The nature and character of the easement, the purpose which it was intended to serve, and other circumstances above adverted to, must be taken into account. The effect of the judgment is to deprive the defendant of the full enjoyment of his |