Abbott v. Herring

Decision Date03 November 1983
Citation97 A.D.2d 870,469 N.Y.S.2d 268
PartiesLeota M. ABBOTT, Respondent, v. Meryl Ann HERRING, Appellant.
CourtNew York Supreme Court — Appellate Division

Frank W. Getman, Oneonta (Clifton M. Tamsett, Jr., Norwich, of counsel), for appellant.

Nydam & Bookhout, Oneonta (Ellen Leary Coccoma, Oneonta, of counsel), for respondent.

Before MAHONEY, P.J., and MAIN, MIKOLL, YESAWICH and LEVINE, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court in favor of plaintiff, entered October 29, 1982 in Otsego County, upon a decision of the court at Trial Term, without a jury.

The parties own adjoining lots of real property located in Otsego County which are bounded on the west by New York State Route 28 and on the east by Goodyear Lake. The two lots were originally one tract owned jointly by plaintiff and another, when, in 1960, the northern lot was conveyed to defendant's predecessor in interest. Subsequently, plaintiff became sole owner of the southern lot. A house is located on each of the lots. Plaintiff's lot also contains a garage located near the highway where vehicles may be parked. Additionally, there is a walkway from the highway to plaintiff's house. However, because of the terrain, vehicular access to plaintiff's house is possible only by way of a one-lane dirt and stone driveway which runs from Route 28, across defendant's property, to plaintiff's house. The deed conveying the northern lot did not expressly reserve an easement for use of the driveway. As a result of defendant's refusal to allow plaintiff access to the driveway, plaintiff commenced this action seeking to establish an easement by implication or prescription. After a trial without a jury, Trial Term held that an easement by implication, limited to boats and service and delivery vehicles, had been established. This appeal by defendant ensued.

In order to establish an easement by implication from pre-existing use upon severance of title, three elements must be present: (1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary to the beneficial enjoyment of the land retained (Heyman v. Biggs, 223 N.Y. 118, 125, 119 N.E. 243; see 17 N.Y.Jur., Easements and Licenses, § 64, pp. 329-330). Implied easements are not favored in the law and the burden of proof rests with the party asserting the existence of facts necessary to create an easement by implication to prove such entitlement by clear and convincing evidence (Zentner v. Fiorentino, 52 A.D.2d 1036, 384 N.Y.S.2d 297). Also, the law will less readily imply an easement in favor of a grantor than it will imply one in favor of a grantee (Paine v. Chandler, 134 N.Y. 385, 388, 32 N.E. 18).

Turning to the instant case, defendant does not challenge the existence of the first element. She argues that the evidence in the record does not support Trial Term's finding of a long-continued and obvious use prior to separation of title. Plaintiff acquired her interest in the property in 1957. The northern lot was conveyed to defendant's predecessor in interest in 1960. The only evidence in the record to demonstrate long and continued use prior to separation of title is plaintiff's testimony that the driveway was used from the date of purchase by delivery and service vehicles and for transporting boats to the lake. The driveway was not used from October to May. The evidence does not indicate with any degree of specificity how often the driveway was used by such vehicles...

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24 cases
  • Lew Beach Co. v. Carlson
    • United States
    • New York Supreme Court — Appellate Division
    • October 21, 2010
    ...and citations omitted]; see Mobile Motivations, Inc. v. Lenches, 26 A.D.3d 568, 570-571, 809 N.Y.S.2d 253 [2006]; Abbott v. Herring, 97 A.D.2d 870, 870, 469 N.Y.S.2d 268 [1983], affd. 62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680 [1984] ). Here, plaintiff has failed to present any eviden......
  • Devine v. Village of Port Jefferson
    • United States
    • U.S. District Court — Eastern District of New York
    • April 26, 1994
    ...necessary to create an easement by implication to prove such entitlement by clear and convincing evidence." Abbott v. Herring, 97 A.D.2d 870, 469 N.Y.S.2d 268, 270 (3rd Dep't 1983), aff'd, 62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680 (1984). See also Buck v. Allied Chemical Co., 77 A.D.......
  • Pastore v. Zlatniski
    • United States
    • New York Supreme Court — Appellate Division
    • August 11, 1986
    ...was physically obvious and apparent upon reasonable inspection prior to the separation of title (see generally, Abbott v. Herring, 97 A.D.2d 870, 469 N.Y.S.2d 268, affd. 62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680; Buck v. Allied Chem. Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222; McQuinn v.......
  • Fischer v. Liebman
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1988
    ...Pastore v. Zlatniski, 122 A.D.2d 840, 505 N.Y.S.2d 903; Buck v. Allied Chem. Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222; Abbott v. Herring, 97 A.D.2d 870, 469 N.Y.S.2d 268, affd. 62 N.Y.2d 1028, 479 N.Y.S.2d 498, 468 N.E.2d 680; McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541, lv. denied 32......
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