Springstein v. Schermerhorn

°^.ofda laud was leased j," ^ij/e’/reser! íém, and gram! 1c“foae«ao°u1tabi)f maeno¡%od&c.ftia mises, with com* out of any'part the woodland of A ; and at* terwards rievi* c Vü “u.e tí-Mt,“tiío®s on devitor!1*enter! p^tiuon. “"‘in menL^mw d|andouiéri’¿ So?“ with® ¡8* by^Bumté-’ surrender!6 or E’FTa’ke16666®' p/opersie(°rf ”he neiue"se”t,and Septefi! ro’/tiííní Sse,6by I c hew,' thatvas v^won^nThe ttoPm!¡,”r, the acceptance of new leases did-' not operate as a of the burutot-tbeíe!¿ sees, having aci 'cptc? neB leases jrozn the íSncTórtSagreement, aré-' lease of the old was to he presumed ? end was thereby estopped frdm all claim under the lease to him ; nnd that/ for these reasons, the-right-granted to-B:, to take Mioyczs from the otheriauds of A., was gone.

THIS was an action of trespass guare clausum fregit, anti for Cutting WOod, &C.. In 1707, Killian Van Rensselaer, proprietor of tlie manor of .Rensselaermick, gave a lease in fee, to Jacob Schermerhorn, of a tract of woodland,, now situate in the town of Schodack, in Rensselaer county, containing, by estimation, four hundred; acres of land, more or less.; subject to the yearly rent of one tenth pajrt of the produce of the demised premises. The lease con-tamed the following clause : “ Together withreasonableesfotws out of the woods of the said manor, for building, fencing, and „ , . . . ii , „ „ fuel, on the said woodland,”' ¿fee.; and also the following reserva1 ■ ... ° tian : “ Reserving the privilege to the neighbouring tenants of the said manor, of free pasturage for commonable cattle, within the bounds of the said tract, if not in fence; to gather and take away stone; and to cut -and carry away wood, for fencing, building, and fuel, for their uses on the said manor only.” In 1763, Jacob Schermerhorn conveyed part of the- demised premises, by metes and .bounds, to his son, Ryers Schermerhorn ; .and the deed contained the following clause : “ As also free Iiherty and privilege for the said Ryers Schermerhorn, his heirs and assigns, to cut and carry away wood for fuel and fencing, for the use of the conveyed premises only, out of any part of the woodland of the said Jaco5 Schermerhorn, and excepting and reserving to the lord of the manor, the tenth of the produce of all grain, the growth of the same premises.” Jacob Schermerhorn, by his will, dated the 16 th of July, 1766, devised all his lapd, lying at Schodack, on the main, shore, to his $onsy Johannes, and. Hendrick, their heirs and assigns, for ever. each the equal half thereof. On the death of the testator, during the revolutionary war, the devisees entered on.the premises so devised, which were part i i t 1 of the land above leased, and, soon after, divided" the same between them. , By an agreement, made the 24th oí November, 1791, betweenRyers Schermerhorn, John Schermerhorn, Jacob Schermerhorn, Hendrick Schermerhorn, and several others, of Schodack, of the Qne part> ancj Stephen Van Rensselaer, proprietor of the said manor, by Thomas L. Whitbeck, his attorney, of the other part; reciting, that the parties of the first part, being tenants in common, of certain ■ lands in Schodack,- by virtue of four several leases from Killian Van Rensselaer, the proprietor of the manor of - Rensselaer, specifying their - dates, and desirous to hold the lands, each, for himself, in severalty, and subject to a certain, annual stipulated rent, they agreed to release, or surrender up, their former leases, to the party of the second part, and take new leases, agreeable -to a survey to -be made, subject to the annual rent of ten bushels of wheat for every hundred acres ; and the party of the second part agreed to execute new leases accordingly, reserving only ten bushels of wheat and two fat hens, yearly, for each hundred acres, free from any quarter Sale ; with free privilege for cutting wood in such lands, in the said manor, as shall, from time to time, remain Waste, and not particularly appropriated or demised. In pursuance of this agreement, Hendrick Schermerhorn, oh the 23d of June, 1792, accepted a new lease from S. Van Rensselaer, the proprietor of the manor, for divers parcels of land in the said manor, including the premises devised to him, as aforesaid, and described with metes and bounds, in which was the following clause : “ Together with reasonable estovers for building, fencing, and fuel, on said pieces or parcels of land, out of such parts of said manor, as shall, from time tó time, remain waste, and not particularly appropriated or demised by the said Stephen Van Rensselaer, his heirs, and assigns,” ' Johannes Schermerhorn and Ryers Schermerhorn, accepted similar leases for their respective lands, in January, 1794. Hendrick Schermerhorn died intestate, in 1796, and in 1798 his heirs sold, and conveyed to the plaintiff, 147 acres of the land and premises so leased to Hendrick Schermerhorn. The plaintiff had married a daughter of Johannes Schermerhorn, who inherited, from her father, twenty acres of the land so leased :.to Johannes. The plaintiff entered into the possession of the premises so. conveyed, and devised, to him, and enclosed the same with a fence ; and the defendant broke the fence of the plaintiff, and cut and carried away wood from off the said land,. Myers Schermerhorn, a few years ago, died intestate, and his lands descended to his son, H. R. Schermerhorn, the defendant, who claimed the right to cut and carry away wood out of the close of the plaintiff by virtue of the conveyance from Jacob Schermerhorn to Ryers Schermerhorn, in 1763. Two witnesses, for the defendant, testified, that the plaintiff had complained, that the right of the Schermerhorns to cut wood on his land, was ten times more burdensome to him than the rent payable to the lessor. That the witnesses lived near the premises ; and that since 1792, and long before, the defendant and his father exercised the right claimed by them, to cut wood on the said premises, with the knowledge of the plaintiff, and they never heard the right questioned, until a short time before the commencement of the present suit. Two witnesses, for the plaintiff, testified, that they lived near the premises, and that the privilege claimed by the defendant and his grantor; to cut wood on the premises, had been a subject of controversy between^ them and the plaintiff, and those under whom he derived his title, for many years, and that actions of trespass had been brought before justices of the peace ; and that the plaintiff had uniformly and openly denied and resisted the privilege claimed by the defendant. It was agreed by the case, that, if the court should be of opinion that the plaintiff Was entitled to recovery, an interlocutory judgment should be entered, and a writ of inquiry of damages issue thereon; otherwise, a judgment of nonsuit was to be entered.