Fritz v. Tompkins
| Decision Date | 26 November 1901 |
| Citation | 61 N.E. 893,168 N.Y. 524 |
| Parties | FRITZ v. TOMPKINS. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from supreme court, appellate division, Third department.
Action by John Fritz against Winfield Tompkins. From an order of the appellate division (56 N. Y. Supp. 847) dismissing a judgment for plaintiff and granting a new trial, plaintiff appeals. Reversed.Edwin D. Wagner, for appellant.
Wesley Gould, for respondent.
This action was commenced on the 14th day of December, 1893, to restrain the defendant from obstructing a private road or right of way, to the use of which plaintiff was alleged to be entitled, over the lands of the former. The answer pleads title in fee in the defendant, and denies that the plaintiff is entitled to the use of the alleged right of way.
The parties own adjoining farms. The farm of the plaintiff is known as ‘Lot 5,’ and that of the defendant as ‘Lot 6.’ The farm of the defendant lies to the north of the plaintiff's, and is crossed from southeast to northwest by a public highway. The east line of plaintiff's farm does not touch the highway, and the plaintiff has no mode or egress or ingress except over the right of way that crosses the dividing line of the farms near the east boundary thereof, and for a short distance traverses the southeast corner of defendant's lot to the highway. On July 9, 1870, one Parminter was the owner of both lots, and on that day he conveyed lot 5 to one Reynolds. In the deed he gave Reynolds a right of way over and across the corner of lot 6 in the following language: ‘Also hereby granting to the said party of the second part the right to use the private road excepted and reserved from the premises granted and conveyed unto Ingraham Hulburt by said party of the first part by warranty deed bearing even date herewith, to which reference is made.’ On the same day (the 9th of July, 1870) Parminter conveyed lot 6 to Hulburt, reserving the right of way to Reynolds, as above as forth. These lots continued to be used as separate farms and owned by different persons down to about July, 1881, at which time both were purchased under foreclosure by one Egbert A. Clark, and prior to Clark's purchase the private road had been used without interference or interruption. In December, 1882, Clark conveyed lot 6 to the defendant, Tompkins; the deed containing no reservation of the said right of way. In January, 1884, the plaintiff became the purchaser of lot 5, and went into possession under a contract with Clark. After the execution of the contract, Clark died; and subsequently the plaintiff received a warranty deed from Harriet S. Clark, the widow, who had become vested with title. Neither the contract nor the deed contained any particular or general words indicating an intention to grant or reserve the right of way, which is 163 feet long, and of sufficient width for the passage of teams. The court found that this right of way has been opened and used continuously by the different owners and occupants of lot 5 since 1869; that it was at all times well defined, considerably traveled, open, and visidle; that the use and occupation thereof were never interrupted or interfered with down to the time the obstructions complained of in this action were placed therein by the defendant; that there has been no route for reaching the public highway from lot 5, except across the corner of lot 6 and over the right of way in question, without going on the lands of strangers; that the only suspension of the user of the right of way was during a short time when both lots were owned by Clark and his heirs, for the reason it was more convenient to reach lot 5 from the buildings upon lot 6 in another direction across the meadow of the latter lot; that in 1891 or 1892 the plaintiff built a barbed wire fence, with the knowledge and consent of the defendant, along the side of the private way in question, and between the same and the lands of the defendant; that a short time prior to the 26th of October, 1893, the defendant placed obstructions across the right of way, which were soon thereafter torn down by the plaintiff, and the defendant then built other and substantial obstructions, which were removed by the plaintiff, and on the 26th of October, 1893, the defendant laid a stone wall across said right of way, and placed stumps therein, and a large amount of stones, brush, and rubbish; that on the 11th of December, 1893, the plaintiff obtained a temporary injunction, and the same, together with the summons and complaint in this action, was served upon the defendant, and since that time the plaintiff has had the use and enjoyment of the private way. After finding these facts the trial court decided that the plaintiff had been damaged to the amount of six cents, and found, as conclusions of law, that the plaintiff had no other way of egress or ingress to and from said premises from the public highway, except over and along the aforesaid right of way, without trespassing upon the lands of strangers; that the said right of way is necessary to the enjoyment of the said plaintiff, his heirs and assigns; that the plaintiff was entitled to an injunction restraining defendant from obstructing or interfering with the right of way, and to a judgment for six cents damages and costs. The appellate division reversed the judgment, and ordered a new trial. The plaintiff appeals, and defendant seeks to sustain the order on two grounds: (1) That a former judgment between the same parties, and read in evidence on the trial, is a bar to this action; (2) that the dominant estate, lot 5, having been conveyed to the plaintiff without reserving the right of way in terms over lot 6, the right of way was lost, for the reason that when Clark became the owner of both lots said right was merged in the title, and could only be perpetuated by a reference to the same in the subsequent grants to the plaintiff and defendant.
As to the former judgment read in evidence being a bar to this action, it is obvious that the question is not before us. It does not appear on the face of the order appealed from that...
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...42 Cal. Rptr. 400, 406 (1965) (holding that necessity easements are not subject to the doctrine of merger); Fritz v. Tompkins , 168 N.Y. 524, 61 N.E. 893, 895–96 (N.Y. 1901) (same); Hwy. Props. v. Dollar Sav. Bank , 189 W.Va. 301, 431 S.E.2d 95, 98 n.4 (1993) (same); see also Riley v. Jones......
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