Offenhartz v. Heinsohn

• Decision Date: 23 February 1956
• Citation: 150 N.Y.S.2d 78,30 Misc.2d 693
• Parties: Eileen O'Donnell OFFENHARTZ and Harry D. Offenhartz, Plaintiffs, v. Theresa HEINSOHN and Inter-County Title Guaranty & Mortgage Company, Defendants.
• Court: New York Supreme Court

Page 78

150 N.Y.S.2d 78

30 Misc.2d 693

Eileen O'Donnell OFFENHARTZ and Harry D. Offenhartz, Plaintiffs, v. Theresa HEINSOHN and Inter-County Title Guaranty & Mortgage Company, Defendants.

Supreme Court, Westchester County.

Feb. 23, 1956.

Sidney Feldshuh, New York City (William W. Mizrahi, New York City, of counsel), for plaintiffs.

Hutton & Holahan, Brooklyn (Albert Hutton, Brooklyn, of counsel), for defendant Theresa Heinsohn.

Morris Permut, New York City, for defendant Inter-County Title Guaranty & Mortgage Co.

EAGER, Justice.

By this action, plaintiffs seek (by their first alleged cause of action) to establish and enjoin interference with an easement to maintain and use a pipe line running underground through the lands of the defendant Heinsohn for purpose of transmission of water from certain springs to a reservoir located upon plaintiffs' premises; or, in the alternative (by their second alleged cause of action), to recover damages of the defendant Inter-County Title Guaranty & Mortgage Company for alleged breach of covenants of a title policy alleged to insure the plaintiffs against damages by reason of a defect in title to such an easement. The plaintiff, Eileen Offenhartz, acquired the lot of land described in paragraph 'Second' of the complaint on July 1, 1944, by warranty deed from one Gertrude T. Chase. The deed also purported to convey to her 'all the right, title and interest of the party of the first part to use two springs feeding the water reservoir on the said premises, and such rights as the party of the first part has to lay and maintain pipes and conduits from said springs to said reservoir.'

Thereafter, on September 14, 1949, the plaintiff Eileen Offenhartz conveyed the said property to herself and husband (the plaintiff Harry Offenhartz) by a quitclaim deed. This deed also contains the above quoted provision.

The springs mentioned are located on the lands of a third person situate some distance to the southeast of plaintiffs' lot. For upwards of 25 years prior to the trial of this action, water for use on the lot now owned by plaintiffs came from said springs by means of gravity flow through an underground pipe line into a reservoir situate on said lot. This pipe line traversed intervening lands owned by third parties. The defendant Heinsohn in 1951 acquired a piece of these lands, to wit, a lot of land situate to the southeast of and adjacent to plaintiffs' lot. The underground pipe line traverses this Heinsohn lot. There is nothing in her deed nor in the record appertaining to her title to indicate that her lot is subservient to an easement for the pipe line, and she claims that she acquired her lot for value without notice of any servitude therefor.

The plaintiffs have not alleged or established any deed or written agreement from or binding upon the defendant Heinsohn or her predecessors in title having the effect of creating a pipe line easement as claimed by plaintiffs. In fact, plaintiffs' case against said defendant rests solely upon the premise that they and their predecessors in title obtained the easement in question by adverse user for upwards of fifteen years. And, there being nothing in the deed or record under which the defendant Heinsohn claims to put her on notice as to any such easement, it is plaintiffs' further claim that, at the time of her purchase of her lot, she knew or was put upon inquiry that the pipe line existed and that she thus had constructive notice of the alleged easement.

The conclusion is reached that the plaintiffs' complaint as against the defendant Heinsohn is to be dismissed. In the first place, they have not established an easement by prescription to use and maintain the pipe line. Concededly, adverse possession is not a favored method of procuring title, and a prescriptive right may be made out only by clear and convincing proof. Berke v. Lang, 202 Misc. 1108, 115 N.Y.S.2d 83; Hammond v. Zehner, 21 N.Y. 118; Hammond v. Antwerp Light & Power Co., 132 Misc. 786, 791, 230 N.Y.S. 621, 628; Palermo v. Minnamon, Sup., 74 N.Y.S.2d 495. While it is true that proof of open, notorious and undisputed use of land continuously for the statutory period may give rise to a presumption that such use was adverse and under a claim of right, and, without additional proof, support a title by prescription, see, Hammond v. Zehner, supra; Pirman v. Confer, 273 N.Y. 357, 363, 7 N.E.2d 262, 264, 111 A.L.R. 216, it is clear that whether or not this presumption arises depends upon the nature of the use and the surrounding circumstances in the particular case. Where the true owner is in actual possession of lands and a certain use thereof or of a portion thereof by a stranger to the title is not an exclusive use and is in every way consistent with the owner's use of the lands, there is no presumption that the use by the stranger is adverse. See, Moore v. Day, 199 App.Div. 76, 191 N.Y.S. 731, affirmed 235 N.Y. 554, 139 N.E. 732; Berke v. Lang, supra.

In the case at bar, it appears that, over the years, the parties involved were neighbors and from all that appears, were on friendly terms. There is no proof whatever as to the circumstances attending the first laying of the pipe line and as to whether or not such laying was under a claim of right. The character of the use over the years would depend upon the intention with which the entry for the pipe line was first made and use continued. If first use was by permission, the use would be presumed to so continue, see, Lewis v. New York & H. R. Co., 162 N.Y. 202, 220, 56 N.E. 540, 545, and there is no reason to assume that the installation and first use of this particular line was otherwise than by permission. In any event, mere proof of the continued existence for upwards of fifteen years of a pipe line underneath the lands of a neighbor for the purpose of supplying water to an...