Strevell v. Mink

• fullCitation: Strevell v. Mink, 6 A.D.2d 350, 176 N.Y.S.2d 901 (N.Y. App. Div. 1958)
• Decision Date: 31 July 1958
• Citation: 6 A.D.2d 350,176 N.Y.S.2d 901
• Court: New York Supreme Court — Appellate Division
• Parties: Grace STREVELL, Plaintiff-Respondent, v. Louise Frances MINK, Defendant, and Leland Filkins and Margaret Filkins, Defendants-Appellants.

Page 901

176 N.Y.S.2d 901

6 A.D.2d 350

Grace STREVELL, Plaintiff-Respondent, v. Louise Frances MINK, Defendant, and Leland Filkins and Margaret Filkins, Defendants-Appellants.

Supreme Court, Appellate Division, Third Department.

July 31, 1958.

Philip G. Coffey, Jr., Albany, for defendants-appellants, Filkins.

Hinman, Straub, Pigors & Manning, Albany (J. Vanderbilt Straub, John J. Clyne, Albany, of counsel), for plaintiff-respondent.

Before BERGAN, J. P., and GIBSON, HERLIHY, and REYNOLDS, JJ.

WALTER B. REYNOLDS, Justice.

This appeal presents the question of whether or not a private easement, or right of way, created by deed, has been extinguished, either by abandonment or by estoppel. In 1897 one Mary Leggett acquired from Elias Warner a parcel of four and one-half acres of land situated in the Town of Berne, Albany County, in the vicinity of Warner's Lake. She was granted, over the remaining lands of the grantor lying between the demised premises and Warner's Lake, 'a right of way * * * 10 feet wide and also sufficient land on the shore of said lake for a boat house, and dock.' By mesne conveyances, which repeated the grant of the easement, the dominant tenement in 1940 was acquired by the defendant Mink, who, in 1954, after the commencement of this action and subject to it, conveyed the property to the defendants Filkins. The servient tenement came into the possession of the plaintiff herein, by deed from Elias Warner, in 1934; the plaintiff is the daughter of the said Elias Warner.

The trial was held before an official referee and plaintiff has had judgment on his findings that no roadway or pathway of any type was ever maintained over the servient estate, that no dock or boathouse was ever built on the lake shore, that the owners of the servient tenement, in reliance upon the 'abandonment' of the right of way, have asserted dominion over the same and have performed acts inconsistent with its existence, that there has been a radical change in the character of the servient tenement from farmland to valuable summer resort property, and that one Dorothy Hinman, who has constructed a home on land leased from the plaintiff, would suffer irreparable damage if the right of way should now be asserted.

Extinguishment of rights, easements or otherwise, by bare abandonment, is not common. There must be conduct on the part of the easement owner manifesting an intent to exercise the easement no longer, and the acts relied upon to establish an abandonment must unequivocally evidence a clear intention to abandon (Foote v. Metropolitan Elevated Railroad Co., 147 N.Y. 367, 42 N.E. 181; 3 Powell on Real Property, par. 423, pp. 493-494). Nonuse of the easement is an essential part of finding an intent to abandon, but it is not enough. 'It seems to be well settled that an easement created by a deed of grant, or otherwise by a writing, cannot be proved to have been extinguished by proof only of nonuser, no matter how long such nonuser may have continued' (3 Powell on Real Property, par. 423, p. 494; see, also, Snell v. Levitt, 110 N.Y. 595, 18 N.E. 370, 1 L.R.A. 414; Welsh v. Taylor, 134 N.Y. 450, 31 N.E. 896, 18 L.R.A. 535; Carman v. Hewitt, 280 App.Div. 866, 114 N.Y.S.2d 266, affirmed 305 N.Y. 718, 112 N.E.2d 785; O'Neill v. O'Hare, 254 N.Y. 186, 172 N.E. 464; and other New York cases collected in Annotation, 25 A.L.R.2d 1265, 1276). There is no evidence in the record of any affirmative conduct on the part of the various owners of the dominant tenement inconsistent with their desire further to use the easement. Thus there is lacking the most important type of evidence on the question of abandonment (3 Powell on Real Property, par. 423, p. 496). There is no evidence that the easement owners chose some other means of getting to the lake shore, or that the dominant tenement was fenced in such a manner that the right of way could not be used. On the contrary, a gateway in a stone wall on the corner of the property nearest the lake indicates that the owners of the dominant tenement fully intended to preserve this access to the water. Admittedly, this right of way, if it ever were laid out as a recognizable path or roadway (the evidence is in conflict on this point), became overgrown and obliterated with the passage of years and lack of use. But this fact, without more, cannot be used as a support on which to base a finding of intent to abandon. In the findings below it is simply said that the ...