Gerbig v. Zumpano

• Decision Date: 21 January 1960
• Citation: 197 N.Y.S.2d 161,165 N.E.2d 178,7 N.Y.2d 327
• Parties: , 165 N.E.2d 178 Harry J. GERBIG et al., Respondents, v. Rose ZUMPANO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 161

197 N.Y.S.2d 161

7 N.Y.2d 327, 165 N.E.2d 178

Harry J. GERBIG et al., Respondents, v. Rose ZUMPANO, Appellant.

Court of Appeals of New York.

Jan. 21, 1960.

Pierce V. Brennan, New York City, for appellant.

S. Peter La Rosa and William J. Kalt, New York City, for respondents.

BURKE, Judge.

The plaintiffs-respondents and the defendant-appellant are owners of residential property which abuts Heath Avenue in the Borough of The Bronx and is separated by a lot formerly called a 'lane'. The action is brought to extinguish defendant's claimed easement of ingress and egress over the lane, and for the removal of incumbrances erected by the defendant. A judgment in favor of the plaintiffs has been unanimously affirmed by the Appellate Division.

The properties now owned by defendant and plaintiffs were formerly a portion of an entire unit which was subdivided into numbered lots, together with vertical and horizontal 'lanes' running north and south and east and west. A map of this subdivision was filed and the land was subsequently conveyed by reference to this map. The land in question (described as lot 166) is a segment of one of these 'lanes' and separates the property now owned by the parties to this action. When originally subdivided this 'lane' was the only possible avenue to a public street from the property presently owned by the defendant. In 1912 Heath Avenue, which borders on the property in question, was opened as a public highway thereby making unnecessary the use of lot 166 as a means of ingress and egress to a public street. Prior to 1955, but subsequent to 1912, the defendant acquired the property via a deed which described the property by reference to the original map. By deed dated December 28, 1955 the plaintiffs acquired title to tax lot 166 from New York City. The city had previously acquired the fee as the result of an in rem tax foreclosure proceeding (Dec. 3, 1953). Defendant has constructed a patio and built fences and enclosures on this land. When defendant failed upon demand to remove these incumbrances the plaintiffs brought this action.

The trial court, recognizing the appropriate circumstances, found that an implied easement by grant was in fact originally created in favor of the land now owned by the defendant. (See Matter of City of New York (Northern Blvd.), 258 N.Y. 136, 179 N.E. 321; Lord v. Atkins, 138 N.Y. 184, 33 N.E. 1035; Fiebelkorn v. Rogacki, 280 App.Div. 20, 111 N.Y.S.2d 898, affirmed 305 N.Y. 725, 112 N.E.2d 846; Weil v. Atlantic Beach Holding Corp., 1 N.Y.2d 20, 150 N.Y.S.2d 13; Rose v. Indian Park Ass'n, Inc., 3 A.D.2d 274, 160 N.Y.S.2d 353; 3 Powell, Real Property, par. 409.) However, while aware of the legal distinction, the court equated this easement by grant with an easement by necessity, and held that: '(L)and titles should not be subject to implied, as distinguished from express, encumbrances unless such burdens are reasonably necessary for the enjoyment and use of neighboring properties * * * Since the easement was implied so that purchasers of interior lots may have access to and from their land, the implication ceases where a public highway has been built affording both parties free and untrammeled approach to and from that highway.'

We reach a different conclusion. It is the law of this State that an easement created by grant, express or implied, can only be extinguished by abandonment, conveyance, condemnation, or adverse possession. See, e. g., Holloway v. Southmayd, 139 N.Y. 390, 402, 34 N.E. 1047, 1048, 1052; Johnson & Co. v. Cox, 196 N.Y. 110, 121, 89 N.E. 454, 458; Fiebelkorn v. Rogacki, supra, 280 App.Div. at pages 21-22, 111 N.Y.S.2d at pages 899-900.

The mere fact that this easement might originally have been created out of necessity does not alter the means by which it was created, i. e., by grant, and as such it remains as inviolate as the fee favored by the grant, unless, of course, conveyed, abandoned, condemned or lost through prescription.

The plaintiffs raise, for the first time on this appeal, an issue (i. e., abandonment) which may possibly have some merit. Although the record presented does indicate a long period of nonuse together with acts which may or may not imply an abandonment, it is not sufficiently clear for us to rule as a matter of...