Hedden v. Bohling

Decision Date04 June 1985
Citation112 A.D.2d 23,490 N.Y.S.2d 391
PartiesRobert P. HEDDEN and Louise B. Hedden, Respondents-Appellants, v. Mabel A. BOHLING, Appellant-Respondent.
CourtNew York Supreme Court — Appellate Division

Durr, Keinz & Parker by Richard Parker, Utica, for appellant-respondent.

Conboy, McKay, Bachman & Kendall by Stephen Gebo, Watertown, for respondents-appellants.

Before DILLON, P.J., and BOOMER, GREEN, PINE and SCHNEPP, JJ.

MEMORANDUM:

Defendant appeals from a portion of a judgment which ordered her to move a boathouse and supporting cables from in front of plaintiffs' property. Plaintiffs cross appeal from so much of the same judgment which entitled defendant to the benefits of an easement of ingress and egress across a strip of land owned by plaintiffs.

Defendant and plaintiffs own adjoining recreational property on Wellesley Island along the shoreline of the St. Lawrence River. Defendant owns a boathouse consisting of a 35 foot long structure. The uncontradicted proof at trial established that the boathouse encroached eight to nine feet in front of plaintiffs' property. We agree with the trial court that as an owner of the boathouse, defendant bears the responsibility for this encroachment (see Hinkley v. State of New York, 234 N.Y. 309, 317-318, 137 N.E. 599).

We disagree with the trial court, however, that defendant is entitled to an implied easement from preexisting use of ingress and egress across a strip of plaintiffs' property. Implied easements are not favored by the law and the burden of proof rests with defendant to prove such entitlement by clear and convincing evidence (see Buck v. Allied Chemical Corp., 77 A.D.2d 782, 431 N.Y.S.2d 222). The record does not support the trial court's finding that such an easement is reasonably necessary for defendant's beneficial enjoyment of her property. Defendant's use of the driveway in dispute is a mere convenience which is insufficient to justify the granting of an easement (see 17 NY Jur, Easements and Licenses §§ 64, 69; see also, Paine v. Chandler, 134 N.Y. 385, 387, 32 N.E. 18; Snyder v. County of Monroe, 2 Misc.2d 946, 153 N.Y.S.2d 479,affd. 6 A.D.2d 854, 175 N.Y.S.2d 1008; Tucci v. Giarrusso, 124 N.Y.S.2d 17; Morrow v. Gerber, 207 Misc. 597, 139 N.Y.S.2d 406; Garvin v. State of New York, 116 Misc. 408, 190 N.Y.S. 143.)

Judgment unanimously modified on the law and as modified affirmed with costs to plaintiffs.

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7 cases
  • Pastore v. Zlatniski
    • United States
    • New York Supreme Court — Appellate Division
    • August 11, 1986
    ...establish the element of reasonable necessity in order to require an implied easement over the subject property (see, Hedden v. Bohling, 112 A.D.2d 23, 490 N.Y.S.2d 391; Buck v. Allied Chem. Corp., supra). Special Term therefore properly granted summary judgment in favor of the plaintiffs (......
  • Fischer v. Liebman
    • United States
    • New York Supreme Court — Appellate Division
    • February 1, 1988
    ...680; McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541, lv. denied 32 N.Y.2d 610, 344 N.Y.S.2d 1025, 297 N.E.2d 524; Hedden v. Bohling, 112 A.D.2d 23, 490 N.Y.S.2d 391, appeal dismissed 67 N.Y.2d 758, 500 N.Y.S.2d 1029, 490 N.E.2d 1235; 49 N.Y.Jur.2d, Easements, § 91). This precedent is i......
  • Bonadio v. Bonadio
    • United States
    • New York Supreme Court — Appellate Division
    • December 8, 2021
    ...v. 257 Cent. Park W., Inc., 52 A.D.3d 355, 355, 860 N.Y.S.2d 69 ). "Implied easements are not favored by the law" ( Hedden v. Bohling, 112 A.D.2d 23, 24, 490 N.Y.S.2d 391 ; see Mau v. Schusler, 124 A.D.3d at 1294, 1 N.Y.S.3d 609 ). Here, the Supreme Court erred in granting that branch of th......
  • Bonadio v. Bonadio
    • United States
    • New York Supreme Court
    • December 8, 2021
    ...A.D.3d at 1316; 251 CPW LLC v 257 Cent. Park W., Inc., 52 A.D.3d 355, 355). "Implied easements are not favored by the law" (Hedden v Bohling, 112 A.D.2d 23, 24; see Mau v Schusler, 124 A.D.3d at Here, the Supreme Court erred in granting that branch of the plaintiff's motion which was for su......
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