Ernst v. Keniry

• Decision Date: 21 November 1963
• Citation: 19 A.D.2d 938,244 N.Y.S.2d 239
• Parties: George ERNST et al., Respondents, v. John F. KENIRY et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 239

244 N.Y.S.2d 239

19 A.D.2d 938

George ERNST et al., Respondents, v. John F. KENIRY et al., Appellants.

Supreme Court, Appellate Division, Third Department.

Nov. 21, 1963.

Dewell & Orton, Greenwich, and Patrick J. Keniry, Mechanicville, for appellants.

Van Ness & Russell, and Charles B. Russell, Greenwich, for respondents.

MEMORANDUM DECISION.

This is an appeal from an order which determined the rights of the parties to an easement and further found there was no abandonment of the easement by the plaintiffs.

The plaintiffs and defendants (except William McBurney) are dominent owners of a right of way over a driveway from Main Street in the Village of Greenwich to the rear of their premises.

The defendant, William McBurney, is the owner of the servient tenement and we do not determine his rights or interest herein.

The action, in reality, is between the plaintiffs and the defendants, John F. Keniry and Keniry Motors, Inc.

The plaintiffs by their pleadings seek to prohibit the defendants Keniry from parking automobiles on the right of way adjacent to their building and the defendants by way of answer contend that the plaintiffs, because of certain acts, have abandoned the right of way and should be forever enjoined and restrained from the use thereof.

The owner of the driveway, McBurney, is also the owner of premises immediately north thereof and the plaintiffs are the owners of premises immediately to the south. At the east or rear end of the driveway is a building used as a garage by the defendants Keniry, under lease, and owned by the defendant Lant.

When the plaintiffs acquired their property, they demolished an old building thereon which did not occupy all of the rear of the premises. They erected a new building thereon which covered substantially all of the property, eliminating a rear entrance, but constructing a side entrance along the driveway, which is used by the tenants occupying the second floor and for unloading merchandise used in the plaintiffs' business. The defendants parked automobiles, new and used, along the driveway nearest plaintiff's building, which resulted in obstructing the entranceway. The defendants, by their claim of abandonment, contend that the plaintiffs cannot use this door under the terms of the easement.

The easement provides:

'A right of way from Main Street in the Village of Greenwich, for teams or otherwise over his home premises adjoining as the same is now used from Main Street to and on the rear of the premises now owned by [Rogers] and occupied by the Greenwich Union Water Works, which right of way, however, is subject to the use thereof by others to whom the same has been granted in former conveyance thereof.' (Emphasis supplied.)

The plaintiffs contend that the easement is in the premises and not in the building and therefore it was not terminated by the erection of a building on their property. The wording of the easement seems plain that the plaintiffs have a right of way in the driveway in common with the other easement owners and it is not restricted solely to travel 'on the rear of the premises'. As an incident to the easement, the plaintiffs are entitled to a reasonable use of the door opening on the side of the driveway and there is no proof in this record that the canopy over the entrance-way in...