Green v. Mann

• Decision Date: 31 March 1997
• Citation: Green v. Mann, 655 N.Y.S.2d 627, 237 A.D.2d 566 (N.Y. App. Div. 1997)
• Parties: Theodore A. GREEN, et al., Respondents, v. John MANN, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 627

655 N.Y.S.2d 627

237 A.D.2d 566

Theodore A. GREEN, et al., Respondents, v. John MANN, et al., Appellants.

Supreme Court, Appellate Division Second Department.

March 31, 1997.

Tambini & Golimbu, LLP, White Plains, (Alexander N. Golimbu, of counsel), for appellants.

Alfred Sklaver, Yorktown Heights, (Harvey M. Sklaver, of counsel), for respondents.

Before MILLER, J.P., and RITTER, THOMPSON and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action pursuant to RPAPL article 15 for, inter alia, a judgment declaring the existence of an easement over certain property owned by the defendants, and to recover damages for interference with that easement, the defendants appeal from a judgment of the Supreme Court, Putnam County (Dickinson, J.), entered January 25, 1996, which, after a nonjury trial, inter alia, is in favor of the plaintiffs and against them, directing that they remove a structure encroaching on the easement and restore the property subject to the easement to its original condition.

ORDERED that the judgment is affirmed, with costs.

In 1905 an easement for a right of way was created by express grant across lake-front property. The easement was intended to permit the holders of the easement to cross certain property so as to obtain access to the lake, and to construct and use a dock. Through subsequent conveyances the plaintiffs became the owners of subdivided lots on the dominant estate and the defendants became the owners of the lots on the servient estate. One of the plaintiffs' deeds contained specific reference to the easement. The defendants' deed contained specific reference to the existence of the easement as set forth in the 1905 grant, and recited that the property was purchased subject to the easement. The defendants were aware of the use of their property for purposes of the easement at the time they purchased it.

After more than 30 years of use and of notice of the easement, the defendants constructed a bulkhead which blocked the plaintiffs' access to the lake. The defendants alleged that the bulkhead was required by their liability insurer because of an accident that had occurred on the premises, and that it did not unreasonably interfere with the use of the easement. Following a nonjury trial, the court found that the plaintiffs possessed an easement by grant and by prescription and that the bulkhead did, in fact, interfere with it. The court directed that the defendant remove the bulkhead and restore the premises to its original condition. We affirm.

An easement appurtenant arises when the easement is (1) conveyed in a writing, (2) subscribed by the person creating the easement, which (3) burdens the servient estate for the benefit of the dominant estate (see, Strnad v. Brudnicki, 200 A.D.2d 735, 736, 606 N.Y.S.2d 913,49 N.Y.Jur 2d, Easements and Licenses in Real Property, § 8). Thereafter, when the dominant estate is transferred, the easement passes to the subsequent owner through appurtenance clauses even though there is no specific mention of it in the deed (see, Strnad v. Brudnicki, supra; Spencer v. Kilmer, 151 N.Y. 390, 398-399, 45 N.E. 865; Brooks v. Wheeler, 214 A.D. 147, 149, 212 N.Y.S. 13). Once the easement appurtenant is created, it can only be extinguished by abandonment, conveyance, condemnation or adverse possession, and it otherwise "remains as inviolate as the fee" (see, Gerbig v. Zumpano, 7 N.Y.2d 327, 330, 197 N.Y.S.2d 161, 165 N.E.2d 178; Strnad v. Brudnicki, supra).

The defendants' contention that the plaintiffs did not possess easement rights because their property was not described and laid down in the 1905 conveyance and map is without merit. The plaintiffs' lots were created as the result of a subsequent subdivision of the dominant estate. The easement is not destroyed where the dominant estate is divided, and the grantee of any portion of the dominant estate may claim the easement insofar as it is applicable to his part of the property (see, 1 Rasch, New York Law and Practice of Real Property § 18:66, at 534 [2d ed] ). Unless clearly expressed in the grant, the law will not presume that either party at the time of the grant of the easement was ignorant that the grantee had the right to alienate a part of his or her lands, or that by such alienation the easement should be extinguished (see, 49 N.Y. Jur 2d, Easements, § 160, at 275; 1 Rasch, New York Law and Practice of Real Property § 18:68, at 535 [2d ed] ). As no such intention was expressed here, the plaintiffs, as owners of subdivided portions of the dominant estate, are entitled to exercise rights to the easement.

Although the original grant does not specifically describe the easement, the record establishes that the plaintiffs utilized the same portion of the defendants' property for over 30 years, and that the defendants acquiesced in this use. This long-time use, without objection by the servient tenement, establishes the...