Sackett v. O'Brien
| Decision Date | 06 April 1967 |
| Citation | 278 N.Y.S.2d 788,27 A.D.2d 979 |
| Parties | Thomas H. SACKETT, Appellant, v. John Lynn O'BRIEN, Jane M. O'Brien, Thomas J. O'Brien, Elinor GreggO'Brien, Respondents, and Elizabeth A. Pierce, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Harris, Beach, Wilcox, Dale & Linowitz, Elliott Horton, Rochester, for appellant.
J. Paul Brennan, Rochester, for respondents.
Before WILLIAMS, P.J., and BASTOW, GOLDMAN, HENRY, and MARSH, JJ.
In this action to quiet title to a strip of land 30 feet wide running across Lots 17 through 23 of the Forest Lawn Tract in the Town of Webster, New York, plaintiff contends that he owns an easement for access over the strip to his house on Lot 24, or in the alternative, title in fee. Defendants claim title by adverse possession to the strip passing over Lots 17 through 22. In May of 1889, the original subdivider conveyed a rectangular 100 foot parcel, constituting part of the southerly portion of Lots 17 through 23, to a railroad and reserved a 30 foot easement for roadway purposes. The May 1889 conveyance was subject to a covenant in the April 1889 deed to the subdivider which provided that all future owners of lots in the subdivision should have the right to use of a roadway as laid out on a filed map. This easement is the basis of an equitable solution to problems raised by a confusing record.
Plaintiff acquired record title to the strip from the railroad. The defendants John O'Brien and wife own Lot 17 and Thomas O'Brien and wife own Lots 18 through 22, having acquired title in a direct line from the original subdivider. The controversy involves not only plaintiff's use of the 30 foot strip in planting trees and by various other incidents of possession, including access to his house on Lot 24, but also defendants' use by sundry activities attendant upon occupation of their cottages on Lots 17 and 19. The trial court found that plaintiff and defendants had abandoned this strip as a roadway. However, non-use of an easement created by grant or reservation is not equivalent to abandonment (Gerbig v. Zumpano, 7 N.Y.2d 327, 197 N.Y.S.2d 161, 165 N.E.2d 178; 17 N.Y.Jur., Easements and Licenses, § 111). Furthermore, that portion of the strip used by defendants in conformity with the easement was not acquired by adverse possession. The use of property consonant with an easement cannot convert such use into adverse possession without actual or constructive notice of the change (2 C.J.S. ...
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