Palmer v. Palmer

• Citation: 150 N.Y. 139,44 N.E. 966
• Parties: PALMER v. PALMER.
• Decision Date: 06 October 1896
• Court: New York Court of Appeals

150 N.Y. 139

44 N.E. 966

PALMER

v.PALMER.

Court of Appeals of New York.

Oct. 6, 1896.

Appeal from supreme court, general term, Second department.

Action by Harriet M. Palmer against John W. Palmer. From a judgment of the general term affirming a judgment of the special term for defendant (24 N. Y. Supp. 613), plaintiff appeals. Reversed.

Isaac N. Mills, for appellant.

William A. Woodworth, for respondent.

MARTIN, J.

The purpose of this action was to establish the plaintiff's right to a way across the defendant's farm, from Weaver street to a private cemetery owned by her in the rear of the defendant's premises, and to enjoin him from interfering with the exercise of that right. There is very little conflict in the testimony. The defendant's farm is situated on the east side of Weaver street, which is one of the public highways of the town of Mamaroneck, in Westchester county. The defendant and the plaintiff are brother and sister, and were born upon the farm now owned by the defendant. It belonged to their father at the time of his death. It consists of about five acres of land, and is bounded on the southerly and westerly sides by Weaver street; on the easterly side by a lane known as Hickory Grove Factory lane, and premises owned by one Ireland; and on the north by the Ireland premises and Weaver street. The farm lying east of the defendant's premises was previously known as the Haight farm, and has been divided into two farms, known as the Ireland and Large farms; the Ireland farm adjoining the defendant's premises upon the east, and the Large farm lying immediately east of that. Upon the opposite side of the lane, and southeast of the Palmer farm, is a farm formerly known as the Mott farm, and now known as the Birney place. More than 90 years since, there existed in the southwest corner of the Haight or Ireland farm a private cemetery, which is known as the Haight burial ground. It fronted on the lane, and was separated from the Palmer farm by a stone wall. As early as 1820 there existed upon the rear of the Palmer farm, and adjoining the Haight cemetery, another private cemetery, which belonged to the owner of the Palmer farm. It was about the same width from east to west as the Haight cemetery, but did not extend the whole length thereof. These cemeteries were separated by the continuation of a stone wall which was upon the division line between the two farms. In 1868, John Palmer, who was then the owner of the Palmer farm and cemetery, and was the father of the plaintiff and defendant, conveyed the cemetery to his three sons, William D., Benjamin F., and John W. Palmer, with the right ‘to go to and from said ground through the lane known as the Hickory Grove Factory lane.’ In 1872, John Palmer died, intestate, and left surviving, as his only heirs at law, his children, William D., Benjamin F., John W., Harriet M., and Susan A. Palmer. In February, 1874, the children named agreed upon a settlement of the estate of their father, and, in pursuance thereof, William D., Benjamin F., Susan A., and Harriet M. Palmer conveyed to the defendant the five acres now owned by him, and known as the Palmer farm. At the same time, and as a part of the same transaction, the defendant, John W., William D., and their wives, jointly with Benjamin F. Palmer, who was unmarried, conveyed to Susan A. and Harriet M. a small piece of land, which was in the rear, and a part of the Palmer farm, and which lay immediately north of the Palmer cemetery and west of the Haight cemetery, to be used as a private cemetery by the grantees named in that deed. In 1876, Susan A. Palmer deeded to the plaintiff her interest in that lot. After the conveyances of February, 1874, neither the plaintiff nor his sister had any title or interest in any land adjoining the premises conveyed to them. Until that time communication with the Palmer cemetery had uniformly been by passing from Weaver street across the Palmer farm, and since then the plaintiff has used substantially the same way to pass from Weaver street to her lot. Her use of this way had been in no manner interfered with by the defendant, or otherwise, until within five so six years before the trial of this action, when the defendant claimed that she had no right of way across his farm. She, however, claimed the right, and continued to exercise it. In April, 1891, a daughter of the plaintiff died, whose remains she intended to have buried upon her lot, when the defendant forbade her taking the body of her daughter across his farm for burial, and thereupon this action was commenced.

Five or six years since, and after a controversy had arisen between the parties as to the plaintiff's right of way across the defendant's farm, the defendant moved a portion of the wall which separated his farm from the lane, thereby throwing into the lane a portion of the triangular part of the Palmer farm, which lay between the lane and the Palmer cemetery, thus opening a passage from the lane to that cemetery. The Palmer cemetery does not adjoin the lane, and the land between it and the lane is a part of the Palmer farm, and belongs to the defendant. Since this change no carriage or other vehicle can pass from the lane across the Palmer cemetery to the plaintiff's lot, and a person passing from the lane to that cemetery must pass over a portion of the defendant's farm. In 1879, Benjamin F. Palmer died, intestate, leaving, as his only heirs at law, William D. Palmer, the defendant, the plaintiff, and Susan A. Palmer (now Susan A. Dean); and thereby the plaintiff inherited from him, as a tenant in common, an undivided one-twelfth part or interest in the Palmer cemetery. Hickory Grove Factory lane existed as a private way as early as 1801. Where it entered Weaver street, a fence and gate were maintained until about 20 years ago, when it had rotted down, and has not been rebuilt. It communicates with the Large, Birney, and Ireland farms, and with the Haight cemetery, but never reached any public road except Weaver street, or any other premises. It was always separated from the Palmer farm by a stone wall, having no barway, gateway, or other opening, and there is no proof that it was ever accepted, worked, or used as a public highway.

The question resented upon this appeal is whether the plaintiff had a right of way across the premises of the defendant to reach her lot. The appellant's contention is that under and by virtue of the conveyances, which were exected between the parties thereto upon the settlement of their father's estate, the plaintiff acquired a right of way, by necessity, over the remainder of the Palmer farm, from Weaver street to her lot. The deeds executed upon the same...