#### GEORGE O. TOWNSEND, Appellant, *v.*ROBERT BISSELL and ABEL DAVIS, Respondents.

*Basement—Bight of way*— *Adverse use—when*presumed— *Contract of sate—tide of vendee in, superior to that of a grantee with notice.*

When the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for a period of twenty years, the inference is that such use was under a" claim of right and adverse.

When a party, with knowledge of the existence of a contract of sale for certain lands, takes a deed from the owner of the same lands, the equitable title of the vendee in the contract will prevail over that given in the prior conveyance.

Appeal from a judgment in favor of the defendants, entered on the report of a referee.

*298The referee found, among other things, that on the 14th day of November, 1868, the defendant Abel Davis was the owner and in possession of premises known as the Wiley lot, in Watertown, and on that day contracted in writing to sell said premises to one Isaac Sprague. ' The said Sprague contracted to sell his interest in said premises to Elam L. Holcomb, May 1, 1869, which contract Holcomb transferred to Sarah Ann Cooper, March 31, 1870. On the same day Sprague transferred in writing his contract with Davis to the said Cooper with the written consent of Davis. Some time in the fall of 1870 the said Cooper assigned the last mentioned contract to the plaintiff, who then went into possession of the premises, and, having paid the balance of the contract, said Davis, pursuant to the covenants in said contract, gave to the plaintiff a deed of the premises, dated June 8, 1872.

On and before the said 14th- day of November, 1868, the defendant Bobert Bissell was the owner and in possession of premises on said High street, and adjoining the premises described in the deed aforesaid from Davis to the plaintiff.

A dwelling-house was built upon each of said lots about the year 1822, and at the same time the occupants of the resjsective premises used a common lane about ten feet wide, one-half taken from each lot, and the center line of the lane from High street being the division line between the lots; the said common way or lane was, from 1822 until about the time of the commencement of this action, used by the occupants of the respective lots under a claim of right. The Bissell lot is not accessible by a team to the rear, except through this lane, the lot being only two rods wide, and one side of the house forming the' marginal fence of a part of the lane. The said lane has been a portion of the time since 1822 inclosed by a fence on each side but open at the street.

The defendant Bissell was in possession of the said lane, using the same in common with the occupants of the said Wiley lot, as above stated, at the time the said Isaac Sprague purchased the Wiley lot, November 14, 1868. Sprague knew of such uses, and that Bissell claimed the right of way, and purchased arid went into possession upon the assumption that Bissell had the ■ right of way. The right as appurtenant to the said Bissell lot was never disputed *299or questioned by any owner or occupant of the Wiley lot until the plaintiff did so after he had taken his deed from Davis.

When the plaintiff took the assignment of the Sprague contract, and when he obtained the conveyance from Davis, he knew that the defendant Bissell was in the actual use of the said easement, or right of way, under a claim of right to such user.

Bissell, after the making of the contract of sale, and with knowledge of it, took a conveyance "from Davis of the right of way, but the referee found that the said Bissell, in taking a conveyance of the right of way, did so simply to confirm a title which he had acquired by long user.

*Anson B. Moore,*for the appellant.

To authorize a presumption of a grant, the enjoyment of the easement must be not only uninterrupted for a period of twenty years, but it must be adverse; exclusive, and under a claim or assertion of right; and it must be with the knowledge and acquiescence of the owner. *(Parker*v. *Foote,*19 Wend., 309-313; *Flora*v. *Corbin,*38 N. Y., 111; 32 How., 439 ; Albany L. J., Oct. 5, 1872, page 234; *Wolfe*v. *Frost,*4 Sandf. Ch., 72.) It is well settled that to constitute an adverse possession, it must be adverse at its commencement and so continue. It must be hostile to the owner. A person who enters without claiming title is deemed to hold for the rightful owner, *(Brant ex dem. Walton*v. *O. & D. Ogden,*1 Johns., 156; *Jackson*v. *Johnson,*5 Cow., 74; *Jackson*v. *Woodruff,*1 id., 276; 1 Salk., 246; *Smith*v. *Burtist,*6 Johns., 218.) Every presumption is in favor of a possession in subordination to the- title of the true owner. *(Jackson*v. *Sharp,*9 Johns., 164; *Hammond*v. *Zehner,*21 N. Y., 120, Clerke, J.) The enjoyment of an easement for twenty years and over, where the party enters and .uses by permission, or by favor, and not under a claim of title and in a manner hostile to plaintiff, cannot ripen into an adverse possession. The simple proof of an exclusive and uninterrupted enjoyment of an easement for more than twenty years, is only *prima facie*evidence of its being adverse, and any such presumption may be rebutted by evidence. The user in this case was not exclusive, but was with plaintiff and his grantors. The slightest evidence will overcome any such presumption. *(Hart*v. *Vose,*19 Wend., 365, opinion of *300Cowen, J., 366.) The right to enter upon lands, build a dam there, etc., given without consideration, does not operate either by way of grant or estoppel to create any continuing or present right, nor can it be the basis of adverse possession. *(Babcock*v. *Utter,*1 Keyes, 115-397; 32 How., 439; *Dexter*v. *Holmes,*10 Johns., 246.)

*D. O’Brien,*for the respondents.

The use and occupancy of the lane by the defendant Bissell, and those who were proved or assumed to be his grantors and predecessors in title, present the only question of law decided by the referee in the case. He held that an adverse inception of an easement might be inferred from user, and that the *onus*was on the plaintiff to show that the easement originated in permission or license. This proposition is correct. *(Hammond*v. *Zehner,*21 N. Y., 118; *Hamilton*v. *White,*4 Barb., 61; *Miller*v. *Garlock,*8 id., 153; *Hammond*v. *Zehner,*23 id., 473; *Lansing*v. *Wiswall,*5 Denio, 213; *Corning*v. *Gould,*16 Wend., 529.)

Gilbert, J.:

It is evident from the testimony, and from the fifth finding of fact, that Bissell stands in the position of a volunteer. He paid nothing for the grant from Davis to him, and he had actual notice of the previous sale by Davis to Sprague. Unless, therefore, there was a right of way in the lane., which Davis might confirm by express grant without violating the rights acquired under the contract with Sprague, the plaintiff’s equitable title under that contract should prevail over the prior conveyance to Bissell.*

The general principle on which this doctrine proceeds is, that from the time of the contract for the sale of the land, the vendor holds the legal title as trustee for the vendee, and every subsequent purchaser from either, with notice, becomes subject to the same equities, as the party from whom he purchased would be.† The provisions of the Revised Statutes *‡***avoid, against subsequent purchasers, unrecorded instruments creating interests in real estate, except contracts for the sale or *301purchase of lands. The referee finds that the lane in question existed since the year 1822; that it was formed by taking one-half of its width from the lots owned by the plaintiff and Bissell respectively, the center line of the same being the division line between the lots; and that it has been used continuously ever since by the occupants of the lots, respectively, in common, under a claim of right.

None of these facts are disputed, except that the use of the lane by Bissell and his grantors was under a claim of right. The appellant contends that there is no evidence of such claim. We cannot assent to that. The fact that a part of the lane was taken off from the Bissell lot, and that it furnished the only means of access with wagons to the rear of that lot and to one side of the house thereon, and the absence of evidence of any act of Bissell or his grantors showing that the use was not under a claim of right, or that any former owner of the plaintiff’s lot had ever disputed the right, together with its continued and uninterrupted use for so long a period, furnish very satisfactory evidence that the use of it by both parties was under a claim of right. It is very true, that mere presumption, unsupported by acts, will not suffice as a muniment of title to an easement in land. On the other hand, where the owners of adjoining lots make a way between them, each setting off an equal portion of land for that purpose, and they and their grantees continue to use it in common as a way for a' period of twenty years, we think the reasonable inference is, that such use was under a claim of right, and adverse. * It is not necessary to assert such right in words, or by any particular acts or formula of conduct, or to show that the exercise of the right did any actual damage to the party against whom it is claimed, provided it was an invasion of his right. Where there has been a use of an easement for twenty years, under such circumstances, it will, in the absence of contradictory or explanatory evidence, authorize the presumption of a grant. †

The taking of the deed from Davis by Bissell, did not affect the •ight of the latter. It was merely evidence for the referee to con*302sider, in connection with the other evidence, in determining the question whether the previous use had been adverse or permissive. * The conversation of Davis with Sprague did not contravene the rule against allowing evidence of the declarations of third persons not parties to the record. It operated only as proof of notice to the plaintiff’s assignor, of the claim of Bissell in respect to the lane, and on that ground was competent, because the plaintiff can claim no greater rights than Sprague. The evidence was not necessary to establish the defense, for the reason that the lane itself was open and visible; and that fact was sufficient to charge the plaintiff with notice that it might be an easement. Even if that evidence was erroneously admitted therefor, such an error would not require a reversal of the judgment.†

The judgment should be affirmed, with costs.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed, with costs.

*

 Fonbl. Eq., bk. 1, chap. 5, § 2.

†

 Champion v. Brown, 6 Johns. Ch., 403 ; Hathaway v. Payne, 34 N. Y., 103.

‡

**1 R. S., 756, §§ 1, 38.

*

 Miller v, Garlock, 8 Barb., 153.

†

 Wash. on Eas. (3d ed.), 136 *et seq.,*and cases cited ; Hall v. Augsbury, 46 N. Y., 625.

*

 Perrin v. Garfield, 37 Vt. 310.

†

 Vandervoort v. Gould, 36 N. Y., 639.