140 A.D.2d 752 | N.Y. App. Div. | 1988
Lead Opinion
In 1924, Harry J. Ferguson decided to subdivide certain lake front property he owned in Otsego County into 36 lots. He hired defendant Vito N. Molinari, a land surveyor, to prepare the proposed subdivision map. The map designated a right-of-way intended by Ferguson for the prospective lot purchasers’ common use. Four of the lots were conveyed to Molinari and five of the lots were conveyed to Thomas and Marie Kalligan. Each such conveyance granted a right-of-way over a 15-foot strip of land to be used in common with other lot owners, on the express condition that all gates and bars across the same shall be kept closed. Thereafter, in 1949, Ferguson’s successor in title, Robert J. Wilson, conveyed a lot to defendant Mahlon Olmstead which omitted specific reference to the 15-foot strip but did state, "Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises.” In 1961, plaintiffs acquired the Kalligans’ property by inheritance. Defendant Calabro & Hill Properties, Inc., Wilson’s successor, who owned the remaining lands of the common grantor, resubdivided its lands. Thereafter, Calabro & Hill conveyed a lot to Molinari and a lot to defendants Joseph, Mary and Rudolph Marino. Included in the parcel to the Marinos was the 15-foot strip as a right-of-way for ingress and egress to the lots.
The 15-foot strip was never used to gain access to lots east
Supreme Court’s decision should be affirmed. For a party to successfully assert title to property by way of adverse possession, the possession must be actual, hostile, under a claim of right, open, notorious, exclusive and continuous (Castle Assocs. v Schwartz, 63 AD2d 481). Moreover, in a case such as the instant situation, where an easement has been created by grant but has not been used, even if an owner of the servient tenement has obstructed the easement, this does not necessarily establish adverse possession. Such a use will not be deemed adverse "until (1) such time as the need for the right of way arises, (2) a demand is made by the easement owner that the way be opened, and (3) the servient tenant refuses” (Filby v Brooks, 105 AD2d 826, 828, affd 66 NY2d 640). These requirements have simply not been satisfied in this case. Here, the right-of-way was not sought to be used until 1983, when the Marinos became lot owners and demanded that it be opened. Plaintiffs have further offered no support for their assertion that in 1972 they informed Olmstead that he could not use the right-of-way. Additionally, insofar as plaintiffs’ maintenance of a fence is concerned, the fencing was constructed at the time of the grant of the easement with the right-of-way remaining available on the condition that the gates be kept closed. Therefore, this fails to support plaintiffs’ claim of adverse possession. Thus, in our view, Supreme Court correctly concluded that plaintiffs could not, as a matter of law, prevail on the issue of adverse possession. Accordingly, the court properly dismissed the first cause of action.
Order affirmed, without costs. Kane, J. P., Weiss and Harvey, JJ., concur.
Dissenting Opinion
dissents and votes to modify in a memorandum. Yesawich, Jr., J. (dissenting). I respectfully dissent. Summary judgment has been awarded on the assumption that
The cases of Castle Assocs. v Schwartz (63 AD2d 481) and Filby v Brooks (105 AD2d 826, affd 66 NY2d 640) protect dominant tenants from the loss of an unused easement to the servient tenant and are simply inapplicable to the facts at hand. Here, the dominant tenant, plaintiffs, claim they have adversely possessed the fee of the servient tenant, the Mari-nos’ predecessors in interest. Thus the principles pertaining to adverse possession of a fee, not adverse possession of an easement, should apply. Surely adversely possessing a fee minus an easement (the Marinos’ estate if Olmstead does indeed still possess an easement over the disputed tract) should not be more difficult of accomplishment than adversely possessing a fee simple.
Moreover, this case is notably different from the authorities relied upon by my colleagues in that, even accepting the novel concept necessarily implied in their decision that an easement benefiting the Marinos over their own land can exist, that easement was not granted until 1983, long after the alleged ripening of plaintiffs’ adverse possession claim; the latter maintain they cultivated and also partially fenced in the disputed tract, to the extent it abuts their lots, in 1961. Nor can the Marinos count on the easement the Fergusons planned to bestow, but did not, on lots east of plaintiffs’, for their subdivision map was not filed until after the asserted vesting of plaintiffs’ title by adverse possession (see, 5 Warren’s Weed, New York Real Property, Streets & Highways, § 4.05, at
In my view, resolution of the factual issue of whether plaintiffs adversely possessed the disputed tract is a prerequisite to the disposition of this case. And since that issue cannot be determined on this record, summary judgment as to the first cause of action should have been denied.
Whether Olmstead has or had an easement over the disputed tract is academic for he has defaulted in this action. Even if relevant, Olmstead’s ostensible easement cannot be the basis for granting summary judgment as the fact question of whether he has abandoned his easement is unresolved by the record before us. And Molinari’s easement, which was granted by the Fergusons, Molinari’s and the Marinos’ predecessors in interest, is irrelevant since his right of ingress and egress is over a roadway "to and from” his premises and does not even extend to the disputed tract.
