Mosher v. Hart

• Decision Date: 18 January 1990
• Parties: Jacque MOSHER, et al., Respondents, v. Richard L. HART et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 187

550 N.Y.S.2d 187

157 A.D.2d 931

Jacque MOSHER, et al., Respondents, v. Richard L. HART et al., Appellants.

Supreme Court, Appellate Division,

Third Department.

Jan. 18, 1990.

Robert M. Cohen, Ballston Lake, for appellants.

Paul L. Wollman, Amsterdam, for respondents.

Before MAHONEY, P.J., and KANE, CASEY, WEISS and HARVEY, JJ.

MAHONEY, Presiding Justice.

Appeal from a judgment of the Supreme Court (White, J.), entered May 11, 1988 in Fulton County, upon a decision of the court, without a jury, in favor of plaintiffs.

Sarah Hart owned a large farm in the Town of Ephratah, Fulton County. In 1978 she conveyed a portion of the family homestead to plaintiffs, a daughter and her husband. She also conveyed a one-half interest in another portion of the family homestead to defendants, a son and his wife. The deeds reserved an existing right-of-way to plaintiffs across the property conveyed to defendants. A dispute arose among the parties concerning the precise location and extent of the right-of-way, as well as title to a certain eight-acre parcel. Plaintiffs commenced this action for damages and injunctive relief and defendants answered, denying the material allegations of the complaint and asserting a counterclaim for trespass. Following a nonjury trial, Supreme Court granted plaintiffs a 25-foot wide right-of-way across defendants' property and divided the eight-acre parcel in such a manner that defendants received about two acres. From the judgment entered thereon, defendants appeal.

There is no question that plaintiffs were granted a right-of-way over defendants' property. This action concerns the right-of-way's location, which is not specified in the deeds. Under such a situation, a reasonable and convenient location is implied and the owner of the servient estate has the right to designate a route so long as it is reasonable and convenient under all the circumstances (see, e.g., 49 NY Jur.2d, Easements and Licenses in Real Property, § 102, at 206).

Here, plaintiffs testified that the route designated by Supreme Court was only one of several paths used across the property conveyed to defendants and was not usually used when crops were growing on that field. The proof makes it further apparent that plaintiffs used a different, albeit longer, route across defendants' land for some time prior to this action. Since a right-of-way across defendants' property during the growing season could be a great hindrance to efficient farming...