Marra v. Simidian
| Decision Date | 15 January 1981 |
| Citation | 435 N.Y.S.2d 182,79 A.D.2d 1046 |
| Parties | Robert G. MARRA et al., Respondents, v. Albert SIMIDIAN et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Edward M. Bartholomew, Jr., Glens Falls (James W. Cooper, Glens Falls, of counsel), for appellants.
Gibbons & Burke, Scotia (William J. Burke, Scotia, of counsel), for respondents.
Before MAHONEY, P. J., and SWEENEY, KANE, MAIN and CASEY, JJ.
Appeal from a judgment of the Supreme Court which determined rights in an easement in favor of plaintiffs, entered February 1, 1980 in Warren County, upon a decision of the court at a Trial Term without a jury.
This appeal involves the uses that the plaintiffs can make of their easement of "egress and ingress" to Lake George.
The plaintiffs are the present owners of three separate adjoining parcels of land located about 360 feet from the lake shore on the westerly side of Seeley Road a road that runs generally north and south and divides the lands of the plaintiffs from the land of the defendants. The defendants' land is situated on the easterly side of Seeley Road, opposite that of the plaintiffs, and has 88 feet of lake frontage on the western shore of the lake. Originally, all of the land now owned by these parties was owned by Henry P. Boyack and June E. Boyack, his wife. When the Boyacks conveyed the lands to the plaintiffs, they created an easement, which is the core of the dispute herein, to give these owners access to the lake.
A description of the easement granted follows:
It is also intended herewith to grant a twelve (12) foot right of way to be used for the purposes of egress and ingress to the lake shore, and to be used in common by (plaintiffs) with others, over the southerly most portion of lands of Henry P. Boyack and June E. Boyack located on the easterly side of Seeley Road * * *.
(Plaintiffs) shall have the right to use and maintain the present water line with pump, in conjunction with others.
As long as the Boyacks owned the servient estate, the easement was used by the plaintiffs, not only for egress and ingress, but for swimming, sunbathing and water skiing, without disruption or dispute. When the Boyacks conveyed to one Kubricky, however, the deed to him recited only that the easement was to be used for egress and ingress and made no mention of the plaintiffs' right to use and maintain the pump. After mesne conveyances, the servient estate was deeded to the defendants, and again the deed contained no reference to the plaintiffs' right to use and maintain the pump. When a dispute arose among the parties, the defendants sought to cut off the plaintiffs' use of the easement for all but egress and ingress. Thereupon the plaintiffs brought this action for a judicial determination of their rights under the easement and for damages. In answer, the defendants counterclaimed to enjoin the plaintiffs' use of the pump and affirmatively alleged that they were bound only by the easement of "egress and ingress" as provided in their deed and by no other use; and that they lacked knowledge, actual or constructive, of any other uses made of the easement by the plaintiffs.
The trial court held that the plaintiffs were not entitled to damages but that under the easement the plaintiffs had the right to:
(a) enter upon said easement to use and maintain the present water line and pump;
(b) transport any and all boats by car or otherwise which can traverse the 12-foot easement without surpassing its bounds for the purpose of launching said boats at the end of the easement on Lake George;
(c) store boats on the easement; and
(d) sunbathe on the easement and swim in the lake.
We agree with the trial court's declaration of the plaintiffs' rights as set forth above in subdivisions (a), (b) and (d). As to the plaintiffs' right to use and maintain the pump, the defendants were charged with record notice of the easement which granted the plaintiffs such right, even though the deed to the defendants contained no mention that the easement which burdened their land also included the plaintiffs' right to use and maintain the pump. Clearly, the plaintiffs...
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