OPINION OF THE COURT
Plaintiff brought this action against defendant MASP Equipment Corporation to recover possession of a 60-foot wide driveway easement acquired in 1969 by grant from Hunts Point Industrial Park, Inc. to plaintiff’s prеdecessor in interest, Penn Central Transportation Company. The easement crosses land leased by MASP and provides access from 149th Street to plaintiff’s land in the Hunts Point Industrial Park area of New York City.
Plaintiff recovered a judgment in Supreme Court, Bronx County, which granted it immediate possession of the drive
The Appellate Division affirmed the amended judgment insofar as it confirmed plaintiffs right to unimpeded use and possession of the easement but it struck the portion of it directing the award of $1,000 in dаmages for each day after the expiration of the grace period. On appeal to this court, plaintiff contests the Appellate Division’s order eliminating the award оf liquidated damages and MASP cross-appeals, seeking a judgment in its favor determining that plaintiff, and its predecessor in interest, Penn Central, abandoned their claim to the easement.
Thеre should be an affirmance. The evidence does not support a finding of abandonment and the damage award, entered prospectively for violations of the grace period, cannot be upheld under a theory of either liquidated or punitive damages.
The facts found by the trial court, and affirmed by the Appellate Division, are as follows. Plaintiffs easement was created on October 23, 1969 by a formal, written document titled "Grant and Release of Easements”, signed and acknowledged by Penn Central, Hunts Point and others. By this agreement, Penn Centrаl released to Hunts Point an existing "Serpentine” right of way along the shoreline in exchange for a new easement providing Penn Central access to its Oak Point Yard in the Industrial Park from East 149th Street. In a collateral agreement executed December 17, 1969, Hunts Point agreed to pave the entire length of the new easement. (900 Wool worth Redevelopment Corpоration succeeded to the interests of Hunts Point in the servient property and MASP is its lessee.) Notwithstanding these agreements, however, the easterly end of the easement has never bеen opened and, in fact, has been used continuously by Hunts Point, and then
Plaintiff acquired title to the еasement from Penn Central’s trustees in bankruptcy in April 1976. At about the same time, Supreme Court decided a pending lawsuit involving Hunts Point, Penn Central and the Idaho Potato Packers Corporation (a lessee of Penn Central) and confirmed Penn Central’s right to unimpeded use of the easement. After acquiring title from Penn Central, plaintiff inspected the Oak Point Yard and discovered thе continued obstruction of the easement by Hunts Point and the use of the "dog-leg” path as an alternative access route. In December 1979, prior to Woolworth’s acquisition of Hunts Point, MASP lеased the servient property. In 1981 plaintiff demanded in writing that MASP vacate the easement and when MASP refused, it commenced this action.
We agree with the courts below that MASP failed to рrove its affirmative defense that plaintiff and its predecessor in interest, Penn Central, had abandoned the easement. Although an easement created by grant may be lost by abandоnment, an owner is under no obligation to make use of his property, and an abandonment does not result by nonuse alone (Gerbig v Zumpano,
A party relying upon another’s abandonment of an easement by grant must produce "clear and convincing proof of an intention to abandon it” (Hennessy v Murdock,
Whеn judged by these rules, the facts found by the courts below support their conclusion that plaintiff did not intend to abandon its easement. The record establishes that after the grant Hunts Point and its successors repeatedly acknowledged plaintiff’s easement (indeed Hunts Point agreed to pave it for them) and in 1973 Penn Central joined in litigation with its lessee, Idaho Potato Packers Cоrporation which, among other relief, resulted in a judicial determination confirming Penn Central’s right to the easement. After the appurtenant property was sold to plaintiff, it asserted its rights and requested that MASP vacate the disputed easement. The dissenters at the Appellate Division suggested that bankrupt Penn Central’s agent, Nichols, had apparent authority to bind his emрloyer and that he agreed to exchange the easement for the "dog-leg” easement. Those agreements were conditioned on court approval, however, and in related litigation in the United States District Court, the court found the acts of Nichols were void. Nor does plaintiff’s use of the "dog-leg” path evince an unequivocal intent to abandon thе easement granted it. That right of way was valuable to plaintiff because it provided access to both plaintiff and its lessees, but an owner may hardly be presumed to have abandоned a legal access in favor of an alternative right of way existing only by sufferance.
The Appellate Division was also correct in reversing the award of liquidated damages аssessed against MASP for failing to vacate the easement within the specified grace period. Liquidated damages constitute a sum which the parties to a contract contemplate should be paid to satisfy any loss or injury flowing from a breach of the contract (Truck Rent-A-Center v Puritan Farms 2nd,
Accordingly, the order of the Appellate Division should be affirmed, without costs.
Chief Judge Wachtler and Judges Meyer, Kaye, Alexander and Titone concur; Judge Hancock, Jr., taking no part.
Order affirmed, without costs.
Notes
Nor can the $1,000 a day damages be deemed to be a fine imposed for civil contempt. Civil contempt has as its aim the vindication of a private right of a party to litigation, and any penalty imposed on the contemnor is designed to compensate the injured private party for the loss of, or interference with, that right (Matter of McCormick v Axelrod,