#### John Streuber, Appellant, *v.*E. E. Meacham & Son, Sued Herein as E. E. Meacham & Sons, Respondent.

Second Department,

July 31, 1914.

Beal property—easement—right of way over private road — duty to repair — liability for injuries sustained by employee of owner of right of way while passing over bridge.

A grantor who upon the sale of building lots gives the purchaser an easement in or right to use a private road over which he had previously constructed a wooden bridge for wagons and other Vehicles, is not liable for injuries sustained by a person drawing lumber for a purchaser of one of the lots caused by being thrown from his wagon while passing over the bridge.

A lot owner having such a right of way cannot, by inviting a third person thereon, impose upon the grantor any duty beyond that under the original grant.

The grantor was not bound to repair the road or the bridge, as such duty belonged to the parties who had the benefit thereof.

Appeal by the plaintiff, John Streuber, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 20th day of February, 1914, upon the dismissal of the complaint by direction of the court at the close .of the plaintiff’s case.

*George F. Hickey [M. P. O’Connor*with him on the brief], for the appellant.

*Phelan Beale [Edwin T. Murdoch*with him on the brief], for the respondent.

Putnam, J.:

The defendant corporation owned a tract of marsh land, subject to tidal overflow, along Jamaica creek near Rockaway road, to the south of Jamaica. It had laid this out in building lots, which had been sold to various persons with an easement of access or passage along a sod roadway leading out to the highway at Rockaway road. This private right of way crossed the creek by a raised wooden bridge, which defendant had built for wagons and other vehicles. Frederick Bohn had *575signed a contract for two of these lots but had not taken title. He had engaged a load of building lumber, which on September 6, 1912, plaintiff was driving in over this bridge. In going off the bridge the left front wheel dropped down to the ground abruptly, throwing plaintiff out, breaking a rib with other injuries, for which this action is brought.

The fee of this right of way remained in defendant; the lot owners had only the easement of a right of passage.

At the close of plaintiff’s case the court dismissed the complaint, on the ground that no duty or obligation by defendant bo plaintiff had been shown.

Obviously a lot owner, having such a right of way, cannot by inviting a third person thereon impose upon the grantor any duty beyond that under the original grant. Defendant as the owner of the servient property had no active obligation. The duties on the servient owner are negative — to refrain from interfering with the user granted. The owner of the soil is not bound to repair such a road, as that duty belongs to the party who has the benefit. *(Williams*v. *Safford,*7 Barb. 309, 311; *Herman*v. *Roberts,*119 N. Y. 37; 2 Washb. Real Prop. [5th ed.] 355, § 31; Gale Ease. pt. it7", chap. 1; 14 Cyc. 1209.) And this duty to repair extends to a bridge built by the grantor of such an easement. *(Oney*v. *West Buena Vista Land Co.,*104 Va. 580; 2 L. R. A. [N. S.] 832.)

Nor do the facts show any implied invitation on the part of the defendant toward the plaintiff. *(Heskell*v. *Auburn L., H. & P. Co.,*209 N. Y. 86.) While it may have expected that this right of way would be used, defendant had a right to look for such a use and passage along this right of way without any other liability than the law imposes upon the grantor of the easement.

Where such a tract of land is. adjacent to tidal creeks and inlets such an extemporized roadway is necessarily primitive. Between the end bridge plank and the soil of the roadway there was a drop or stop of from five inches to a foot. This was one of the ups and downs of a rough sod road, crossing muddy marsh ground. Such an opening at the bridge ends had not interfered with the free passage of wagons, which had crossed without any previous casualty.

*576Defendant is not shown to have been guilty of any breach of duty in the condition of the bridge or roadway, or in the circumstances of the accident.

I advise that the judgment of nonsuit be affirmed, with costs.

Present — Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ.

Judgment unanimously affirmed, with costs.