Castle Associates v. Schwartz

• Decision Date: 31 July 1978
• Citation: Castle Associates v. Schwartz, 63 A.D.2d 481, 407 N.Y.S.2d 717 (N.Y. App. Div. 1978)
• Parties: CASTLE ASSOCIATES, Appellant, v. Irving SCHWARTZ, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 717

407 N.Y.S.2d 717

63 A.D.2d 481

CASTLE ASSOCIATES, Appellant, v. Irving SCHWARTZ, Respondent, et al., Defendants.

Supreme Court, Appellate Division, Second Department.

July 31, 1978.

Robert M. Blakeman, Valley Stream, for appellant.

Tillim, Milgraum & Willen, Huntington (Michael Permut and Malcolm L. Tillim, Huntington, of counsel), for respondent.

Before LATHAM, J. P., and DAMIANI, SHAPIRO and MARGETT, JJ.

DAMIANI, Justice.

This is an action to compel the location and opening of an easement of ingress and egress across the lands of Irving Schwartz (hereafter defendant), which was granted by deed dated March 26, 1903.

The property involved is situated in the Town of Huntington in Suffolk County. In 1883 some 17 acres of land were acquired by one William Simpson and his wife as shown on the following diagram:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This irregularly shaped tract was longer from east to west, than it was wide from north to south. Two roads adjoin the property. Bay Avenue is a north-south roadway and abuts the eastern edge of the Simpson tract, and East Shore Road runs in the same directions and abuts the western edge. Further to the west lies a body of water known as Huntington Bay. The major portion of the tract is upland, but along its western border the land descends in a steep hill towards East Shore Road and the level of the water. Apparently the existence of this hill makes access to the interior portions of the tract from East Shore Road difficult.

In 1897 Simpson sold a small parcel to Edwin Sweet. The remainder of his land was thereafter divided into four sections. In 1903 Simpson sold the southwest section to Gilbert Crossman. Although the Crossman parcel has frontage on East Shore Road, access to the interior of the parcel is limited by the steep hill. Accordingly, the deed from Simpson to Crossman contained a provision that the land was sold:

"Together with a right of way for ingress and egress over and along a strip of land 12 feet in width directly adjoining the easterly side of said premises first above described and continuing to Bay Avenue. And the parties of the first part further covenant that when said WILLIAM SIMPSON sells any of his lots fronting on Bay Avenue he will open a road for public use 25 feet in width directly adjoining the said easterly side of said premises first above described and embracing the said 12 feet continuing to Bay Avenue, over which roadway the party of the second part shall have a right of way for ingress and egress to Bay Avenue."

The terms of this grant do not locate the easement and its effect was merely to provide for a right of way running from the eastern border of the Crossman parcel across portions of either the northeast or southeast parcels retained by Simpson to Bay Avenue, depending upon the route chosen for the easement.

In 1907 Simpson sold the northeast parcel to Edward N. Emerson. Since that property fronted on Bay Avenue, the terms of the 1903 deed to Crossman obligated Simpson to open a 25-foot wide roadway from the Crossman parcel to Bay Avenue. The road was never opened and so far as this record shows, no objection to Simpson's failure to do so was ever registered.

Later in 1907 Simpson sold the northwest parcel to Juliana Ferguson and thereafter she purchased the northeast parcel from Emerson and the southwest parcel from mesne grantees of Crossman. Thus, by 1908, Ferguson owned three of the four parcels formerly owned by Simpson, who retained the southeast parcel.

In 1946 John Knutson purchased the southeast parcel from the successors in title to Simpson. When Knutson purchased the property, portions of its boundary were marked by either a barbed wire or wooden picket fence. In 1956 and 1957 Knutson replaced the existing fencing with an anchor chain-link fence on the east, north and west perimeters of his property to protect domestic, farm and game animals which he kept on the land from hunters and wild dogs. Knutson was unaware of the existence of an easement of way across his property.

Eventually, all the Ferguson land was acquired by plaintiff for the purposes of subdivision and development. In preparing a plan for the development of the former Crossman parcel, engineering studies disclosed that because of the contour of the land, it was economically prohibitive to provide for road access to the upland portion of the parcel either from the west or north. Plaintiff attempted to purchase a small triangular corner of the Simpson-Knutson parcel, now owned by defendant, so as to provide it with a route from the rear upland area of the Crossman parcel to Bay Avenue, through the former Emerson parcel that plaintiff already owned. Defendant refused to sell.

In 1976 plaintiff commissioned a title search which disclosed the forgotten easement granted by Simpson for the benefit of the Crossman parcel. Plaintiff demanded that defendant locate and open a right of way across his property, defendant refused, and this suit resulted. Special Term held that in 1908 when Juliana Ferguson acquired both the dominant Crossman parcel and the Emerson parcel which contained a portion of the servient estate and had access to Bay Avenue, a merger of the dominant and servient estates was effected resulting in the extinguishment of the easement.

We hold that the easement was not extinguished or abandoned and that plaintiff is entitled to its right of way across the lands of defendant. It is fundamental that where the title in fee to both the dominant and servient tenements becomes vested in one person, an easement is extinguished (17 N.Y.Jur., Easements and Licenses, § 106). However, in the case at bar, the easement was granted for the purpose of providing road access to and from the upland portion of the Crossman parcel, which because of the contours of the land, could not be had through the northern or western boundaries of that property. Accordingly, the grant provided that the 12-foot wide right of way was to run from the eastern boundary of the Crossman parcel across the lands then retained by Simpson. Although portions of the Emerson parcel were burdened by and servient to this easement, the western boundary of that parcel is not contiguous to the eastern boundary of the Crossman parcel; they merely touch at their respective southwestern and northeastern corners. This simply means that a portion of the easement was never in the hands of the owner of the dominant estate. In order for an owner of the dominant Crossman parcel to reach Bay Avenue by way of the servient portions of the Emerson parcel he had, by necessity, to cross the Simpson-Knutson parcel. The easement was therefore not extinguished by merger.

Nor do the facts of this case establish that the easement was abandoned. Easements created by grant are not lost by nonuser alone. The owner of the dominant tenement is under no duty to make use of the easement as a condition to retaining his interest therein (Conabeer v. New York Cent. & Hudson Riv. R.R. Co., 156 N.Y. 474, 51 N.E. 402). "(W)here an abandonment of an easement is relied upon, there must be clear and convincing proof of an intention in the owner to abandon it as such", independent of the mere nonuser (Hennessy v. Murdock, 137 N.Y. 317, 326, 33 N.E. 330, 332; see, also, Lewisohn v. Lansing Co., 119 App.Div. 393, 400, 104 N.Y.S. 543, 547).

Defendant contends that the erection of a fence around the Knutson property for more than the prescriptive period extinguished the easement by adverse possession. We disagree.

The established rule is that the maintenance of a fence or structure across an existing right of way which bars its use as such for more than the prescriptive period will terminate the easement by adverse possession (see Anns. 1 A.L.R. 884, 66 A.L.R. 1099, 25 A.L.R.2d 1265). The key fact is that the fence or obstruction must block an Existing right of way (25 A.L.R.2d 1325, § 26; 2 N.Y.Jur., Adverse Possession, § 210, p. 141). There are five essential elements necessary to constitute an effective adverse possession: first, the possession must be hostile and under a claim of right; second, it must be actual; third, it must be open and notorious; fourth, it must be exclusive; and fifth, it must be continuous. If any of these constituents is wanting, the possession will not effect a bar of the legal title (Schoenfeld v. Chapman, 200 Misc. 444, 449, 102 N.Y.S.2d 235, 239; Doherty v. Matsell, 119 N.Y. 646, 23 N.E. 994; Belotti v. Bickhardt, 228 N.Y. 296, 302, 127 N.E. 239, 241).

In the instant case, the right of way granted in the deed from Simpson to Crossman has never been "located" and no owner of the Crossman parcel ever requested that a right of way be opened until shortly before the commencement of this action. The upland portion of the Crossman parcel remains unimproved woodland. This fact pattern is similar to Powlowski v. Mohawk Golf Club, 204 App.Div. 200, 198 N.Y.S. 30, in which an owner had divided his property into lots and filed a plat showing the lots and the proposed streets. Powlowski was one of the purchasers of these lots and he had access to an established highway. The Mohawk Golf...