McQuinn v. Tantalo

Decision Date17 January 1973
Citation41 A.D.2d 575,339 N.Y.S.2d 541
PartiesClifford McQUINN et al., Appellants, v. Francis D. TANTALO et al., Respondents.
CourtNew York Supreme Court — Appellate Division

Carey & LaRocque, Malone (Cornelius J. Carey, Malone, of counsel), for appellants.

Joseph Ryan, Malone, for respondents.

Before HERLIHY, P.J., and GREENBLOTT, COOKE, SWEENEY and REYNOLDS, JJ.

MEMORANDUM DECISION.

Appeal from a judgment of the Supreme Court, Franklin County, entered upon a decision of the court at Trial Term, without a jury, dismissing plaintiffs' complaint and enjoining them from trespassing upon the defendants' property.

The litigants are owners of cottage lots located on the shores of Eagle Lake in the Town of Duane, Franklin County. Appellants seek to establish a right-of-way across respondents' lot to afford them access to their lot. The trial court held that no easement had been established and the instant appeal ensued.

Admittedly appellants do not have an express grant of an easement. They urge, however, that they have an easement by implication. We cannot agree. Two types of implied easements which could conceivably apply here are those in which there was an apparent pre-existing use at the time the common owner severed his land and where the easement is necessary for the proper enjoyment of the land (see generally 17 N.Y.Jur., Easements and Licenses, § 44). The latter is clearly not established here with respect to respondents' property. A way of necessity must be strictly necessary (Matter of City of New York (Avenue K, Brooklyn), 250 App.Div. 137, 293 N.Y.S. 1017, affd. 274 N.Y. 503, 10 N.E.2d 520) and since appellants' land is accessible by navigable water which the appellants have the right to use, no way of necessity exists (Moore v. Day, 199 App.Div. 76, 191 N.Y.S. 731, affd. 235 N.Y. 554, 139 N.E. 732; Staples v. Cornwall, 114 App.Div. 596, 99 N.Y.S. 1009, affd. 190 N.Y. 506, 83 N.E. 1132; see also Anno., 9 A.L.R.3d 600; 17 N.Y.Jr., Supra at § 93). Moreover, the former common owner of both lots simultaneously conveyed them to the separate predecessors of the litigants, thus precluding the finding of a way of necessity since to do so would require the declaring of the way across the land of a stranger (Garvin v. State of New York, 116 Misc. 408, 190 N.Y.S. 143; 17 N.Y.Jur., Supra at § 88).

As to the easement premised on an apparent pre-existing use, four elements must be established: there must originally have been unitary ownership of the two estates; while unitary ownership existed, the owner must create the use subordinating one estate to the other or create reciprocal subordinations; the use must be plainly and physically apparent on reasonable inspection, and the use must affect the value of the estate benefited and must be necessary to the reasonable enjoyment of that estate (Cassano v. Merriewold Club, 24 A.D.2d 819, 263 N.Y.S.2d 792, affd. 19 N.Y.2d 640, 278 N.Y.S.2d 614, 225 N.E.2d 208; Jacobson v. Luzon Lbr. Co., Inc., 192 Misc. 183, 185--186, 79 N.Y.S.2d...

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23 cases
  • Koepp v. Holland
    • United States
    • U.S. District Court — Northern District of New York
    • 4 Febrero 2010
    ...necessity must be strictly necessary and if land is accessible by navigable water, no way of necessity exists. McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541 (3d Dep't 1973); see also Peasley v. State, 102 Misc.2d 982, 991, 424 N.Y.S.2d 995 (N.Y.Ct.Cl.1980) (it is the general rule, tha......
  • United States v. O'CONNELL, 523
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 16 Mayo 1974
    ...537 (3d Dept.1949), aff'd mem., 300 N.Y. 697, 91 N.E.2d 724 (1950), and since repeated in other cases, e. g., McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541 (3d Dept.1973). These elements are: (1) The relevant parcels of land must have once been in unitary ownership; (2) A use must hav......
  • Berge v. State
    • United States
    • Vermont Supreme Court
    • 9 Noviembre 2006
    ...(Ct.Cl.1980) (finding that owner with water access is not entitled to easement of necessity through state park); McQuinn v. Tantalo, 41 A.D.2d 575, 339 N.Y.S.2d 541, 542 (1973) (stating that "since appellants' land is accessible by navigable water which the appellants have the right to use,......
  • Monte v. Di Marco
    • United States
    • New York Supreme Court — Appellate Division
    • 14 Abril 1993
    ...estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed (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; Willow Tex v. Dimacopoulos, 120 Misc.2d 8, 11, 465 N.Y.S.2d......
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