Heyman v. Biggs

• Decision Date: 12 March 1918
• Citation: 223 N.Y. 118,119 N.E. 243
• Parties: HEYMAN et al. v. BIGGS et al.
• Court: New York Court of Appeals Court of Appeals

223 N.Y. 118

119 N.E. 243

HEYMAN et al.

v.BIGGS et al.

Court of Appeals of New York.

March 12, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Jennie Heyman and another against Helen W. Biggs and another. From a judgment of the Appellate Division (164 App. Div. 430,150 N. Y. Supp. 246), affirming a judgment of Kings Special Term, dismissing plaintiff's complaint, plaintiffs appeal. Reversed and rendered.

Action was brought to restrain the defendants from maintaining a sewer pipe and connections on the lands of the plaintiffs. The defendant Biggs has died since the appeal herein was taken, but the opinion for convenience of statement has not taken that fact into consideration. The facts so far as material are stated in the opinion.

Hogan, J., dissenting.

William P. Pickett, of Brooklyn, for appellants.

CHASE, J.

In 1892 the Norton Point Land Company was organized as a corporation for the general purpose of purchasing, selling, and improving real property. Between the years 1892 and 1897 it became seised and possessed of a large tract of land at Sea Gate on Coney Island. It caused the same to be surveyed, platted, and blocked for the purpose of selling and disposing of the same. In 1896 it caused a map of said property to be made, and it was filed in the office of the register of the county of Kings on the 16th day of June, 1897. The court at Special Term found:

‘Fourth. That for the purpose of making the said property at Sea Gate more valuable and more easily sold the Norton Point Land Company laid out streets therein, and in such streets installed prior to the year 1897 sewer pipes so as to form a complete system by which the sewage from the houses to be built therein might be disposed of and also installed in said streets prior to the year 1897 water pipes so as to form a complete system by which the houses to be built therein might be supplied with water.’

After making and filing said map the land company caused to be published and distributed numerous circulars, booklets, advertisements, and printed matter relative to its said property. The court found:

‘Seventh. That in the said circulars and advertisements the said Norton Point Land Company stated and represented that there was at Sea Gate a complete system of sewer, water and gas mains for which there would be no assessment, and that Sea Gate was a fully finished property, and that the right to use the improvements introduced including sewers, macadamized roads, water, gas, and electricity passed with no assessment to purchasers.’

Included in the lands so acquired by said company were the lot afterward purchased by the plaintiffs and the lots afterwards purchased by the defendant Biggs herein mentioned. On October 20, 1897, the land company sold to James McAlley three lots of land known as numbers 19, 20, and 21 in block 17 as shown on said map. The land company gave to McAlley a warranty deed of said lots, ‘together with the appurtenances and all the estate and rights of the said party of the first part in and to the said premises.’ In said deed there are certain covenants and reservations relating to the use of said lots that are immaterial in the decision of this appeal. In 1899 the Sea Gate Association was organized, under the Membership Corporations Law (Consol. Laws, c. 35) of this state, among other things, ‘to provide generally for the care, protection and maintenance of the property at Sea Gate of its members and to promote social intercourse among its members and to ends aforesaid to acquire, take, hold and dispose of such property real and personal as the purposes of the association may require subject to such limitations as may be prescribed by law.’

On the 26th day of February, 1901, by deed dated January 1, 1901, the land company sold to the Sea Gate Association ‘the ocean beach at Sea Gate, together with riparian rights, dock, gate entrance, stable and bathhouse, and about one hundred lots of land.’ The deed included Beach Fiftieth street and Surf avenue and the ocean front known as the Beach Reservation. By the deed the land company granted and released to the association the real property therein described bounded by certain streets, ‘together with all the right, title and interest of party of the first part of, in and to all improvements made in, under and upon any of the said streets by party of the first part, including the pavements, sidewalks, gutters, lamps, trees, water mains or pipes, sewers, catch-basins and connections, gas mains, pipes and connections, conduits, subways, poles and wires thereon, including the sewer pipes and all other pipes forming part of any system passing under or through any land of party of the first part not herein and hereby conveyed and the right of access thereto over the said lands, and to have the sewerage and surface water discharged through present outlet until suitable substitutes therefor shall be provided; franchises, rights, privileges and easements and the rights of the party of the first part to grant such franchises, rights, privileges or easements under, upon or in relation to the streets above enumerated, subject, however, to any easements or rights now existing in respect to any of the same and to any easement or easements in favor of any and all of the lands still remaining the property of the party of the first part, and of any of the owners or occupants of any of such land at any time of the same character and extent as is appurtenant to like lands heretofore sold and conveyed by the party of the first part.’

Such deed to the association did not include the lot subsequently sold to the plaintiffs or the lot subsequently sold to McAlley, and thereafter acquired by the defendant Biggs. Among the sewers constructed in the streets of Sea Gate on or before the year 1897 was one in Surf avenue, which had its outlet to the ocean at a point some distance northerly of the lands of plaintiffs and the defendant Biggs. In the year 1901 and prior to June 1st of that year the land company made an outlet for the Surf avenue sewer over lot 1, as laid down on said map and the lands beyond the same to the ocean. The change in the place of outlet of the Surf avenue sewer did not in the slightest respect affect the practicability of obtaining access to that sewer from the lots fronting on Beach Fiftieth street through such street. Thereafter, and on June 3, 1901, the land company sold to said McAlley another lot adjoining those previously purchased by him known as lot No. L. in block 17. This lot was sold and conveyed by a warranty deed similar to the one previously given to him. On November 14, 1906, the land company conveyed to the plaintiffs said lot No. 1, by a similar deed. Lot No. 1 fronts on Surf avenue and extends westerly to Ocean View avenue. At a point less than 100 feet southerly from said lot No. 1 is a street about 100 feet long running at right angles from Surf avenue known as Beach Fiftieth street. The lands purchased by McAlley adjoin the beach reservation and face Beach Fiftieth street, and the rear thereof abuts said lot No. 1. While there are sewer, water, and gas pipes in Surf avenue, they have not been placed in Beach Fiftieth street. Each of said pipes, however, can be reached from the lands purchased by McAlley by a 60-foot extension on Beach Fiftieth street from Surf avenue, and the sewer can also be reached by a few feet of excavation through Ocean View avenue, which abuts the plaintiffs' lot and corners on the McAlley lots. No building was erected on the plaintiffs' or the McAlley lots for several years. Prior to 1908 McAlley died and his executors sold the four lots owned by him at the time of his death to the defendant Biggs. She became a member of the Sea Gate Association, and at once erected a large building on her lots. The line of her lots is about 8 feet from the sewer over and through lot No. 1 of the plaintiffs. She obtained water for her house by extending the water pipe from Surf avenue through Beach Fiftieth street to her property, but as the cheapest method of reaching a sewer she ran her house sewer without the knowledge or consent of the plaintiffs across about 8 feet of plaintiffs' land to and connected the same with the sewer pipe that runs over the plaintiffs' lot from Surf avenue to the ocean.

A controversy arose between the association and Biggs over the use of her building as a boarding house, the detail of which is now unimportant. The association threatened to cut off the water and sewer connection to her house if she did not cease using the same as a boarding house. That threat resulted in an action by her against the association. Biggs v. Sea Gate Association, 152 App. Div. 918,138 N. Y. Supp. 53;Id., 211 N. Y. 482, 105 N. E. 664. The action in which this appeal is taken was brought by the plaintiffs to restrain the defendants from maintaining the sewer over the about 8 feet of their land between the land of Biggs and the sewer on plaintiffs' lot mentioned. We think that they are entitled to the relief demanded.

[1] The right of the plaintiffs to the relief demanded involves the alleged right of the defendant Biggs to use the plaintiffs' land through which to lay and maintain a sewer pipe from her lands to the sewer pipe maintained by the association from Surf avenue through the plaintiffs' lot and other lands to the ocean. If such a right exists it must arise by prescription or by express or implied grant. Rice on Real Property, 441; 9 Ruling Case Law, 745. It cannot have been granted by parol. Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479. ‘An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person...