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the facts in the case at bar, and that in most of them the easements were created while the properties benefited and burdened were held in the same ownership where the use, which ripened into an easement, had its origin. But this does not affect the principle applicable to the facts we now have to consider. The only difference between easements arising upon the severance of an estate theretofore held in unity of ownership, and easements affecting properties held separately and never united in ownership, is as to the manner in which the easement is created. In theory all easements rest on grant, sometimes, although rarely, actually embodied in a deed, but much more frequently implied or presumed. Washburn on Easements and Servitudes, star paging 32; Nichols v. Luce, 41 Mass. (24 Pick.) 102, 35 Am. Dec. 302. If an owner so builds upon or disposes of his property that one part is openly and continuously burdened with a use in favor of another part, and then severs the property and sells that part in favor of which the use has been established, retaining that upon which the burden rests, a conveyance of the right to continue the use will impliedly be found in the conveyance of the part granted, and the grantor will be estopped to deny that he intended to include in his conveyance the right to continue to enjoy the use. So, when the owner of one parcel acquiesces, for 20 years or more, in the open, notorious, and continuous use of his property for the benefit of the property of his neighbor, it will be conclusively presumed that at some time a grant of the right had been made, and a like presumption will arise when two owners of adjoining parcels have for the requisite period of time enjoyed and exercised mutual and reciprocal beneficial uses over the property of each other.

While the law reports in this state are replete with cases dealing with the creation and enforcement of easements, I have been able to find but one which resembles in its peculiar facts the one we are now considering. In that case it appeared that Bartholomew Karalus and his wife, Katarzyna, purchased a corner lot in the city of Buffalo, which they owned jointly. Upon this lot they erected a building, which they occupied as a saloon, grocery, and dwelling house. Subsequently the husband individually acquired title to an adjacent lot. The two lots were inclosed with a fence and used and occupied as one tract, and the husband erected upon the lot acquired by himself individually an addition to the building erected on the corner lot. Connected with this addition were a shed, outhouses, and a large woodshed. These buildings were all used together by the husband and wife, until the death of the former, 25 years after the properties had first been united in use. Later the wife died, bequeathing her property to the plaintiff. The husband having died intestate and without descendants, his heirs, after the wife's death, partitioned his property. The defendants in the action bought the lot which the husband had acquired individually and had used in conjunction with the corner lot. The plaintiffs sought to impress an easement in this second parcel for its use in connection with the corner lot, which as it was claimed were inseparably connected, and all had been used together continuously and notoriously for nearly 30 years. The Appellate Division in the Fourth Depart

ment sustained the plaintiffs' contention, speaking through Mr. Justice Spring as follows:

"I think the long occupancy in connection with the first lot, openly, notoriously, and continuously ripened by adverse user into a definite easement, and that the presumption of a grant is conclusive therefrom. Colburn v. Marsh, 68 Hun, 269, 22 N. Y. Supp. 990, affirmed on opinion below 144 N. Y. 657, 39 N. E. 857; Hey v. Collman, 78 App. Div. 584, 79 N. Y. Supp. 778, affirmed 180 N. Y. 560, 73 N. E. 1125; Fritz v. Tompkins, 168 N. Y. 524, 61 N. E. 893. The rule is stated in this language in Winne v. Winne, 95 App. Div. 48, at page 50 [82 N. Y. Supp. 647, 648], affirmed 184 N. Y. 584 [77 N. E. 1198]: 'Where the owner of the land has, by any artificial arrangement, effected an advantage for one portion to the burdening of the other, upon the severance of the ownership the holders of two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance.' # * If the situation were presented between

the husband and the wife, he would at this late day be estopped to repudiate his affirmative acts in affixing these buildings to the store and dwelling.


* The part of the building, for the various additions are so attached as to constitute one building, cannot now be severed without materially dimin ishing the value of the first tract purchased. The substantial character of the part added, its necessity for the beneficial use of the first property purchased, and the manner in which it was joined to the first building denote that these two people intended that the entire building should remain as erected as an appurtenant to the first lot." Fronckowiak v. Platek, 152 App. Div. 301, 136 N. Y. Supp. 522.

It may be noted in regard to the case last quoted that, although there had been a partial unity of ownership, the court preferred to rest its decision upon the long-continued and notorious use.

Applying the foregoing rules and illustration of the application in previous cases to the case at bar, I am of opinion that the plaintiffs are entitled to the protection which they seek, and which has been awarded to them by the judgment appealed from. The separate owners not only adapted their buildings to a common use, or, what amounts to the same thing, adopted and acquiesced in the adaptation thereof made by their common tenant, but for more than 30 years have continued its use as a single building, and have, more than once, stipulated expressly that their separate properties shall be used as part of a hotel which occupied the entire property. Out of this long acquiescence has grown, as I consider, a conclusive presumption that the use of the building as a whole, and the interdependence of each part upon every other part had origin in mutual and reciprocal grants between the owners. Neither owner can now, as I apprehend, lawfully destroy the mutual and reciprocal easements established by long acquiescence, to the detriment and damage of his neighbor's property. If it be said that the continuance of this state of affairs threatens to make the management of the property difficult, the answer is that the owners for some 40 years have managed to use the property profitably in the precise condition in which the judgment appealed from would leave it. The appellant calls our attention to an apparent contradiction between the thirty-third finding of fact to the effect that there was an agreement between the owners that the building in question should be used as a hotel, and the thirty-seventh finding to the effect that the respective owners had at no time entered into any agreement with respect to the joint or combined use of the properties. The contra

diction is more apparent than real. In the thirty-third finding the court evidently referred to the presumed agreement resulting from longcontinued use and acquiescence. In the thirty-seventh finding the court evidently meant to find that no formal agreement had been entered into between the owners. It should be amended, so as to express that meaning clearly.

The judgment should be affirmed, with costs.

In re FISKE.

In re BRUSH.

(Supreme Court, Appellate Division, Second Department. January 16, 1918.) 1. ELECTIONS 180(1)—BALLOTS-INDICATION OF CHOICE BY VOTER.

Under Election Law (Consol. Laws, c. 17) § 514, as amended by Laws 1917, c. 815, § 6, providing, relative to the canvass of soldiers' and sailors' ballots, that no ballot shall be rejected as void, where the intent of the voter is clearly apparent, the determination of the question of intent is one of fact, and the power to pass on such question is lodged with the inspectors of election.


186(4)-BALLOTS-IRREGULARITIES INDICATION OF CHOICE. Where soldiers were furnished with general ballots, printed by the secretary of state, which did not accurately show the local offices to be filled in the city of their residence, and there was no vacancy to be filled for superintendent of the poor, and the city had no such office as city chamberlain, the inspectors of election could properly find that ballots on which the voters voted for a candidate for mayor in the spaces for city chamberlain and superintendent of the poor were not void, but should be counted for such candidate for mayor.


The intent of a voter should be gathered from the face of a soldier's ballot itself, and the local inspectors cannot be governed by extrinsic evidence or by affidavits.


Const. art. 2, § 1, provides that an elector in the army or navy shall not be deprived of his vote by reason of his absence from his election district, and that the Legislature shall have power to provide the manner in which, and the time and place at which, such absent electors may vote, and for the return and canvass of their votes. Section 5 provides that all elections shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved. Election Law, § 514, as amended by Laws 1917, c. 815, § 6, provides that no soldier's ballot shall be rejected as void, where the intent of the voter is clearly apparent. Held, that where a soldier, not furnished with sample ballots, the party emblem, a list of candidates, or a statement of the party to which they belonged, to assist him in casting his ballot, wrote on his ballot his name and address and a statement that he voted the straight democratic ticket, the ballot was not thereby invalidated, in the absence of any showing of corruption or wrongdoing on the part of the soldier, since, while marked ballots are contrary to the spirit of the election laws, the fundamental thing in the case of the soldier vote is the absolute right of the soldier to vote.

Putnam, J., dissenting in part.

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

Appeal from Special Term, Westchester County.

Separate applications by Edward W. Fiske and by Edward F. Brush for peremptory writs of mandamus, which proceedings were consolidated. From an order granting the writ to make a certain correction in a canvass of votes, Fiske appeals; and from so much thereof as denied further relief, Brush appeals. Modified and affirmed.

In the Second election district of the Fourth ward of the city of Mt. Vernon, one ballot was voted for Fiske in the blank space for city chamberlain, and another in the space for superintendent of the poor, and a third ballot was marked otherwise than in the proper voting space. There was written twice on this ballot: "I, Patrick W. McCarthy, of 7 Short street. Mt. Vernon, N. Y., vote the straight Democratic ticket. [Signed] Patrick W. McCarthy, 7 Short Street," Mt. Vernon, "N. Y." The election inspectors had returned all these ballots as "protested," but had counted the three for Edwin W. Fiske for mayor. Both opposing candidates applied for a mandamus, which proceedings were consolidated.

The learned justice at Special Term held, by his order entered December 26, 1917, that the McCarthy ballot was properly canvassed, but that the other two ballots should not have been counted for the office of mayor, and directed a mandamus to issue to such inspectors to make such correction. The relator Fiske appealed from so much of said order as rejected the two ballots marked respectively in the printed spaces for city chamberlain and superintendent of the poor, and the relator Brush took an appeal from so much of the order as approved the counting of the ballot of the voter with the name Patrick W. McCarthy written thereon.

For opinion below, see 102 Misc. Rep. 136, 168 N. Y. Supp. 398. Argued before JENKS, P. J., and RICH, PUTNAM, BLACKMAR, and KELLY, JJ.

Arthur M. Johnson, of Mt. Vernon (Sydney A. Syme and Frank A. Bennett, both of Mt. Vernon, on the brief), for Fiske.

George H. Taylor, Jr., of New York City (James H. Cavanaugh, of Mt. Vernon, on the brief), for Brush.

PER CURIAM. The present statute for elections by soldiers, sailors, and marines (in compliance with the Constitution, art 2, § 1), contains an important exception not found in the prior statute for voting in the Spanish War. Laws 1898, c. 674. As the formalities for testamentary acts are modified for soldiers and mariners who may make nuncupative wills (Decedent Estate Law [Consol. Laws, c. 13] § 16), so the Legislature has given authority to count ballots that may not be perfect in form by the proviso "that no ballot shall be rejected Ias void where the intent of the voter is clearly apparent." Election Law, § 514, as amended by Laws 1917, c. 815, § 6.

[1-3] The determination of the question of intent is one of fact. Such power to pass on the voter's intent is lodged with the inspectors of election. Such election conducted in a military camp might leave the soldier uncertain where to mark his vote, when there was before him a general ballot printed by the secretary of state, which did not accurately show the local offices to be filled in the city of Mt. Vernon. We are all agreed that, inasmuch as there was no vacancy to be filled for the office of superintendent of the poor, and Mt. Vernon had no such office as city chamberlain, the local inspectors of election could rightly find that such ballots were not void, and that they could be

counted, as the inspectors proceeded to do, for the relator Fiske. We are also of the view that such intent should be gathered from the face of the ballot itself, and that the local inspectors cannot in such count be governed by extrinsic evidence or by affidavits.

[4] The majority of the court are also of the opinion that the ballot with the name Patrick W. McCarthy written thereon was properly counted for the relator Fiske. The express provisions of the Constitution (article 2, § 1), securing the vote to the soldier and sailor in actual service of the United States, dominates the situation, doing away with what might otherwise be a valid objection to the ballot in question. The intent of the voter is clearly apparent, as found by the local inspectors and the learned justice below. Referring to the alleged marking of the ballot by the written declaration thereon that the soldier voted the straight Democratic ticket, signed with his name and address, and the claim that the counting of such ballot violates the constitutional requirement of secrecy, the right of an elector is conferred by the Constitution, and whenever he exercises that right in conformity with the methods prescribed by law, he is entitled to see that his vote is given full force and effect in the determination of what persons were elected to office. People ex rel. Deister v. Wintermute, 194 N. Y. 99, 86 N. E. 818. The people of the state have by express provision of the Constitution, in the first section of article 2, declared that no elector in the actual military service of the state or of the United States, in the army or navy thereof, shall be deprived of his vote by reason of his absence from his election district, and that the Legislature shall have power to provide the manner in which, and the time and place at which, such absent electors may vote, and for the return and canvass of their votes in the election districts in which they reside.

Here is a complete statement of the fundamental law, and an express direction to the Legislature to make it effective. The Constitution then goes on (section 2 of the same article) to exclude certain persons from the right of suffrage, barring those who receive or pay money as compensation for the giving or withholding of a vote, or who make promises with that end in view, or who are interested in wagers on the result. Section 3 declares that no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or while engaged in navigation, nor while a student at a seminary or the inmate of a public almshouse or asylum, nor while confined in prison. Then follow, in section 4, provisions for registration of the voters before they shall be entitled to vote. This is followed by section 5:

"All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be prescribed by law, provided that secrecy in voting be preserved."

We are of opinion that the McCarthy ballot is not in contravention of the Constitution. From the necessities of the case, the soldier and sailor vote in camps at the front, and on board warships, cannot be subjected to the many precautions and protections thrown

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