304 N.Y. 505 | NY | 1952
To expand his coal and masonry trade, Michele Di Leo in 1921 bought land in the Village of Port Chester from William Ryan Company. To get to and from his property, Di Leo and his predecessor before him, from the year 1909 at least, traveled a path, stretching north 250 feet to Westchester Avenue, over lands now owned by Pecksto Holding Corp., Waef Realty Corp. and Port Chester Lumber Company. For upwards of thirty-five years, until 1946, they so traveled without objection from anyone. While some of the owners, across whose lands the path ran, also used it “ once in a while ”, Di Leo traversed it continuously, sometimes making 25 trips a day, at first with teams of horses, later with automobile trucks, to carry his goods. Such frequent traffic transformed the way into a definite road, 18 to 20 feet wide.
In 1946, Pecksto, White Plains — Waef’s predecessor in title — and Port Chester Lumber, the then owners of the parcels between Di Leo’s property and Westchester Avenue, agreed among themselves to establish a new right of way. The new way, intended for the contracting parties’ use, was to extend across the property of White Plains and, if constructed, would have bisected and interfered with Di Leo’s accustomed route. Shortly after this agreement was made, a considerable quantity of stone and gravel was placed on Pecksto’s land just north of Di Leo’s property, and an iron bar erected, which blocked the path and effectively barred his use of it.
Di Leo thereupon brought this action to establish his easement and to require removal of the obstructions. Joined as defendants were, not only the three parties to the 1946 right of way agreement, Pecksto, Port Chester Lumber and White Plains, but also Waef — the latter’s purchaser — 'Cold-Mix — Pecksto’s partial lessee — and holders of a first mortgage placed in 1947 on Waef’s land.
After a trial, the court ruled in plaintiff’s favor. Finding that the use of the right of way was “ hostile under a claim of right, open, notorious, 'exclusive and continuous ” and that it was along a well-defined route, the court concluded that a prescriptive right “ ripened before 1931 ”. From the resulting judgment — which (1) adjudged that plaintiff had a perpetual easement permitting his free and unobstructed use of a right of way extending from the northerly side of his property to Westchester Avenue and (2) ordered defendants, other than Port Chester Lumber, to remove from their respective properties “ all obstructions * * * which encroach upon ” that right of way and to refrain from interfering with plaintiff’s “ free ingress and egress over ” it — all of the defendants, except Port Chester Lumber, appealed. The case is here, by our leave, following a unanimous affirmance by the Appellate Division.
Section 40 of the Civil Practice Act recites:
“ For the purposes of constituting an adverse possession by a person claiming title not founded upon a written instrument or a judgment or decree, land is deemed to have been possessed and occupied in either of the following cases, and no others:
“ 1. Where it has been protected by a substantial inclosure.
“ 2. Where it has been usually cultivated or improved.” (Emphasis supplied.)
While this court has declared that it is ‘ ‘ committed to the view that the doctrine of prescription is to be treated as the application to incorporeal rights of the Statutes of Limitations within the limits of the strong analogy between the two rules ’ ’ (Klin Co. v. New York R. T. Corp., 271 N. Y. 376, 380), it explicitly recognized in that same case that the “ differences between corporeal hereditaments and easements prevent full application of the same rule in both cases ” (271 N. Y., p. 379). Thus, where both doctrines are susceptible of similar treatment — such as the designation of the period of time within which the right to land by adverse possession and the right to an easement by prescription ripens (see Klin Co. v. New York R. T. Corp., supra, 271 N. Y. 376) — an analogy exists and the statutory rules are to be applied to easements. (See, also, Van Roo v. Van Roo, 294 N. Y. 731, affg. 268 App. Div. 170, 175.) Where, however, as here, we are concerned with the kind of physical conduct prerequisite to gaining an easement by prescription, the conduct specified in the statute as essential for acquiring land by adverse possession affords no analogy. The statute — section 40 — deals with the
Any possible doubt as to the correctness of this construction is dissipated by a consideration of the statute’s history. Its earliest forerunner, word for word identical with section 40, is contained in the Laws of 1849 (ch. 438, § 85). Before that time, under the common law, acquisition of title to land by adverse possession required enclosure, cultivation or improvement, but not so the acquisition of an easement by prescription. (See 2 Hilliard, Real Property [1839], pp. 53-55.) The 1849 enactment simply represented a codification of the rules prevailing at common law (see 1 Hilliard, op. cit., p. 27, and cases there collected); no change of settled principles was then intended, and nothing that has been done since suggests a design on the
However, not every use of another’s land gives rise to an easement. It is also requisite that the use be adverse, open and notorious, continuous and uninterrupted for the prescriptive period. (See Wiseman v. Lucksinger, 84 N. Y. 31; Hammond v. Zehner, 21 N. Y. 118; see, also, 5 Restatement, id.)
It is almost self-evident that the parties had but one object in mind, the establishment of boundary lines between their respective parcels. There was neither mention of the right of way nor manifestation of an intent that plaintiff release or divest himself of his easement or any other interest. Indeed, the parties themselves noted in the instrument that 11 a question has arisen as to the location of the true Boundary Line ”, and then went on to recite that they “ desire to fix and definitely establish the Boundary Line ”. Where “ it appears that the purpose of the parties was solely directed towards the particular matter * * * general words will be
restrained.” (3 Williston on Contracts [Bey. ed., 1936], p. 1784.) Consequently, the words quoted above from the agreement, general though they may be, must be limited to their intended scope, taken to refer only to the boundary lines of the parties and to have no effect on plaintiff’s right of way. As the' Supreme Court of Wisconsin declared in a case not unlike the present, ‘ ‘ These quitclaim deeds constituted mere disavowals by the parties that they made any claim to real estate on the other side of the dividing [boundary] line, for the sole and only purpose of finally and permanently fixing the dividing line. The quitclaims were incidental to the establishment of the line, and when they accomplished this purpose they had no other or further object to serve.” (Ogden v. Straus Bldg. Corp., 187 Wis. 232, 255.)
Although defendant White Plains had previously owned the property now held by Waef, it concededly has no interest in that property at the present time; indeed — we were told upon argument of the appeal — White Plains had gone out of existence even before this action was commenced. Since it also appears that it had not in any way interfered with plaintiff’s use of his easement, the judgment against it may not stand.
That leaves for consideration the judgment rendered against those defendants who are the mortgagees of the parcel belonging to Waef. As owners of an interest in the alleged servient estate, they were properly made parties to the action; the value of their security would necessarily be affected by the outcome of the litigation. (See, e.g., Carter v. Sullivan, 281 Mass. 217, 227-228.) Whether there is basis for the judgment against them in its present form, however, poses another question. It not only restrains them from interfering in the future with plaintiff’s ingress and egress over the right of way, but it directs them to remove any obstruction now encroaching upon it. Since there is no proof that any one of the mortgagees took part in setting up or maintaining the obstruction complained of, the judgment, insofar as it orders them to remove it, is unwarranted. (Cf. Gulick v. Hamilton, 287 Ill. 367; McNeil v. Kennedy, 88 W. Va. 524.)
Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur.
Judgment accordingly.
. As is perhaps manifest, use of an easement such as a right of way, if open and continuous, provides the same assurance of notoriety and utilization as would enclosure, cultivation or improvement in the case of land itself.