Merriam v. 352 West 42nd St. Corp.

• Decision Date: 28 December 1961
• Citation: 14 A.D.2d 383,221 N.Y.S.2d 82
• Parties: Herman MERRIAM, Plaintiff-Appellant-Respondent, v. 352 WEST 42ND STREET CORP., Defendant-Respondent-Appellant, Glickman Corporation of Nevada and Louis J. Glickman Foundation, Intervenors-Defendants-Respondents-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 82

221 N.Y.S.2d 82

14 A.D.2d 383

Herman MERRIAM, Plaintiff-Appellant-Respondent, v. 352 WEST 42ND STREET CORP., Defendant-Respondent-Appellant Glickman Corporation of Nevada and Louis J Glickman Foundation Intervenors-Defendants-Respondents-Appellants.

Supreme Court, Appellate Division, First Department.

Dec. 28, 1961.

Irving F. Cohen, New York City, for plaintiff-appellant.

Sanford Solarz, New York City, of counsel (John J. Boyle and John C. O'Malley, New York City, on the brief) for defendants-respondents-appellants.

Before BREITEL, J. P., and McNALLY, STEVENS, EAGER, and STEUER, JJ.

BREITEL, Justice Presiding.

Plaintiff claims an easement by prescription over lands owned by defendant. Special Term held that such an easement exists but only for as long as plaintiff's building remains in its present state and no substantial building is erected on defendant's land. The parties have cross-appealed, plaintiff to eliminate the qualification of the easement and defendant to eliminate the easement entirely.

The parties are adjoining land owners on the west side of Manhattan. Plaintiff's lot fronts on Ninth Avenue and the allegedly servient estate owned by defendant fronts on 43rd Street. Defendant's lot adjoins plaintiff's along the full length of plaintiff's rear lot line. For many decades the adjoining lands had located upon them four-story brick apartment buildings with open rear yards. The level, however, of the two yards was not the same. There was a difference of five or more feet. Plaintiff's building had fire escapes at the rear and, because the yard was depressed and enclosed by buildings on both sides, an iron stairway and gate were constructed at the top leading to the rear yard of defendant's premises.

This last had been the situation for many years. In the event of fire, which never occurred, the occupants and tenants of plaintiff's building could have fled the premises by use of the stairway, the gate, and defendant's rear yard. Access to 43rd Street could have been gained by passing through the open corridors on the ground floor of defendant's building. The iron stairway and gate constituted an open condition between the lands and none could claim ignorance of their existence.

After 1956, when defendant acquired its land, the old building on defendant's land was demolished, and the vacated land, together with adjoining parcels, has since been used as a leased parking lot. Defendant's tenant built a wall to prevent automobiles parked on its land from falling into the declivity. This wall extended along the border of plaintiff's land. In building it, defendant's tenant removed the gate. The iron stairway thereupon simply led to a wall which was not readily surmountable. In consequence the city authorities placed a violation on plaintiff's building because his fire escapes and means of egress no longer provided exits in case of fire. ¹

Plaintiff very frankly by his pleading, his proof, and his argument concedes that the fire violation is the nub of his rpoblem. To bolster the claim of easement, however, he sought to show user over the years by a janitress of the former owner, who entered the rear yard once or twice a week from 1938 to 1947 to clean it. In so doing, she walked through defendant's building and used the gate and ladder. She lived in plaintiff's building and could have entered the yard without passing over defendant's land, but she did so to avoid walking through the store located on the main floor of plaintiff's building. After plaintiff purchased the premises in 1947 he also used the appurtenances and defendant's yard two or three times a year to repair the gate and to make deliveries of merchandise which he sold to the occupants of defendant's premises. The janitress, no longer employed as such, occasionally used the same route to retrieve clothes which had dropped from her clothesline.

It is evident that an easement in vavor of plaintiff, as circumscribed by the trial court, would confer a great benefit upon plaintiff and do little or no harm to defendant. However, in order to support either a perpetual easement or a limited one the traditionally essential conditions to support such an easement must be present. For the reasons that will appear, the conditions are lacking in this case and the judgment in favor of plaintiff must be reversed and the complaint dismissed.

The claimed use by the janitress, and later by plaintiff when he became the owner, over defendant's yard falls far short of the kind of continuous adverse user upon which an easement by prescription may be based. It is not every use of another's land that is adverse or against which the owner is required, at the risk of subjecting himself to an easement, to take action immediately either by way of self-help or at law. Neither in the old days nor today is neighborliness to be avoided upon pain of impairing title to one's property. The janitress' passage over defendant's land, while having some repetitiveness, did not have any of the suggestions of adverseness upon which prescriptive rights might be based. (Panzica v. Galasso, 285 App.Div. 859, 136 N.Y.S.2d 554, aff'd 309 N.Y. 978, 132 N.E.2d 894; Offenhartz v. Heinsohn, 30 Misc.2d 693, 150 N.Y.S.2d 78 [Eager, J.]; Norwick v. Edelman, 204 Misc. 915, 917, 128 N.Y.S.2d 312, 314; Berke v. Lang, 202 Misc. 1108, 1110-1112, 115 N.Y.S.2d 83, 85-88.)

The period over which the user by the janitress occurred amounted to nine years, and is not sufficient, alone, to satisfy the statutory requirement of fifteen years (Civil Practice Act, § 34). Plaintiff's own use to repair the gate and to make deliveries on defendant's premises two or three times a year, which plaintiff seeks to 'tack' on to the use by the janitress is even less significant. Such infrequent use neither impinged upon the use of defendant's land by its owners nor brought home to such owners the fact of any trespass upon their land.

More important to the case is the open and 'notorious' existence of the iron ladder which advertised to any who could see that plaintiff or his predecessors in title had built the appurtenance for an exit over defendant's land. The structures, then, was an open continuing declaration that plaintiff and the occupants on his land would use defendant's land in the event of fire or otherwise. The fact is, however, no fire occurred and there was never such use, except for what has been described above. The question, then, is whether such declaration, coupled with evident potentiality for adverse user is sufficient to create an easement.

If one looks but to the traditional statements of the rules it is evident that easements may not be created merely by the declaration or threat of user. Instead there must be actual use in addition to which the use must be open, notorious and adverse.

Looking beyond the mere statement of the rules to the manner in which a prescriptive easement arises, it becomes evident that mere declaration or threat of user is and should be insufficient to create the easement. In order for a use to be adverse it must be wrongful (Hammond v. Zehner, 21 N.Y. 118; 3 Powell, Real Property 447-448; 5 Restatement, Property § 458 and Comments to Clauses (a) and (b), incl. Illus. 1 and 5). Indeed, it has been said that it must be wrongful in the sense of being actionable at law for a wrong done (Moore v. Day, 199 App.Div. 76, 86, 191 N.Y.S. 731, 738, aff'd 235 N.Y. 554...