Snell v. Levitt

The recording statute applies to easements (1 R. S., m. p. 762, § 68 [36]; 3 Kent Com., 401), therefore the release from Prances A. E. Higgins to Edwin Snell was void against plaintiff unless he had such notice that he was not a purchaser in good faith. (1 R. S., 756, § 1.)

This easement arose by grant. Non-user would not extinguish it. There must be a strictly adverse possession for twenty years. Now the only adverse holding which the defendant claims is this, that after the release from Higgins to Edwin Snell (in which it was agreed that Higgins should draw water from certain pump logs, instead of the Kingsbury spring), the plaintiff and his grantors have drawn from such other source, and the Kingsbury spring has not been used by them. But these facts do not show an adverse holding. It does not appear that the plaintiff’s grantors have known, during all this time, that the water was not coming from the Kingsbury spring. Having, by their deed, a right to draw from that spring, and receiving water from the land of defendant and his grantors, they -might suppose that they were using the Kingsbury spxfing.

The essence of an adverse holding is that the x’iglit of the claimant is denied. When it has been denied, to his knowledge, for a cei-tain length of time, the law assumes that he can have no right because he has failed to assert it. That case is not px’esented here.

*230There was no error in striking out the evidence of Block, and as there was no question for the jury, it was proper to direct a verdict.

Judgment affirmed, with costs.

Judgment affirmed, with costs.