116 Misc. 408 | New York Court of Claims | 1921
On the 26th day of May, 1910, the claimant owned in fee a tract of land of about forty acres in the town of Whitest own, Oneida county. It was bounded on the south by the lands of the New York Central Railroad Company, on the west by lands of one Sweet, on the north by the Mohawk river, and on the east by lands of Mary E. Whitton and the
In 1915, or previously, for similar purposes, the state appropriated a part of the “ Whitton premises ” adjoining the claimant’s property and lying between the latter and the public highway extending north from the village of Oriskany. In that year the state constructed on the portion of the “ Whitton premises ” thus appropriated a new channel for an old tail race on the latter property, and so altered the course of the race that it crossed the appropriated part of the “ Whitton premises ” northerly to the new channel of the Mohawk river, and on a right angle to the river. The appropriation of the “ Whit-ton premises ’ ’ and the construction of the new channel of the race, cut off access to the unappropriated remainder of the “ Garvin premises,” across the Whitton parcel from the highway, it being physically impossible to reach the Garvin property by that route without bridging and crossing the race. This would involve very considerable expense. The evidence is undisputed that if the claimant owned any easement or right of way across the “ Whitton premises,” and it was appropriated by the state by the process above set forth, the claimant’s damages amounted to $1,900.
A claim for the first appropriation was filed on the
The main question, which is determinative of this item of the claim, concerns the existence of the
Prior to September 4, 1823, Simon Newton Dexter owned both the “ Garvin premises ” and the “ Whit-ton premises.” On that date, he and his wife conveyed to William M. Cheever, the “ Garvin premises.” At that time and previously, Cheever owned lands adjoining the “ Garvin property ” on the west, and these premises already owned by Cheever had access to a public highway by bridge over the Erie canal, by a route which did not involve the “ Whit-ton premises.”
Later Cheever and wife conveyed the “ Garvin premises ” to Simon Newton Dexter and Isaac Northrop, who continued to own that property in common on January 10, 1834. On the last mentioned date Simon Newton Dexter, who individually still owned the “ Whitton premises,” and his wife, conveyed the V Whitton premises ” to William C. Noyes. It will be noted that at the time of the conveyance of theWhitton premises” to Noyes, the latter was owned by Simon Newton Dexter individually, while the interior parcel, the Garvin property, was owned in common by Dexter and Northop.
(1) There is no evidence that at the time of either of the conveyances there, was any open, permanent, visible, or apparent way existing, or in use, identical in location with the alleged easement. There is a total absence of testimony in that respect; in fact, there is no evidence that a visible, apparent way has
Another condition to such transfer or reservation by implication is that the easement asserted shall be necessary to the dominant property. Mere convenience will not suffice. No necessity exists, when a way or access to the highway can be had through one’s own land, however convenient and useful another way might be. Paine v. Chandler, supra; Bauman v. Wagner, 146 App. Div. 191; Staples v. Cornwall, 114 id. 596; affd., 190 N. Y. 506. There
(2) It is a general principle of law that when there is a conveyance of a tract of land, and there is no means of access thereto, or egress therefrom, except over the remaining land of the grantor, a way of necessity over such land ordinarily is granted by implication of law, and conversely, that a way of necessity impliedly is reserved in favor of a grantor whose land can be reached only by passing over land granted. 19 C. J. 921-928; 23 Am. & Eng. Ency. of Law, 13 et seq., and cases cited. The same essential of necessity to which we referred above must exist in such case. Therefore, no way of necessity arose in favor of the “ Garvin premises ” upon the conveyance to Cheever, for the reasons already given. The claimant, however, argues vigorously that the conveyance to Noyes reserved a way of necessity by implication in favor of the “ Garvin premises.” We are unable to accede to that contention. It is fundamental that a way of necessity is dependent upon an implied grant or reservation, and cannot exist where there was no unity of ownership of the alleged dominant and servient estates, for no one can have a way of necessity over the land of a stranger. Mere necessity alone does not create a way of necessity. At the time Simon Newton Dexter and wife conveyed to Noyes the “ Whitton premises,” he was not the owner of the “ Garvin premises,” in whose favor the claimant now contends a way of necessity then was reserved by implication. The “ Garvin premises ” then were owned in common by Dexter and Northrop. Conversely to the facts presented here, the courts have held that one cannot have a right of way of necessity over land which the grantor never owned
(3) There is no uncertainty of authority in the law of prescription. Few doctrines have been more definitely stated. Difficulty, however, arises often in applying these principles to the facts. This case is troublesome in that respect. The evidence on this topic covered the period from 185-6 to 1915. Without reviewing it, it is enough to say that we find the testimony of Andrews and Gregory too indefinite and vague to be valuable. That of Morris Richards described a way different in location from the easement asserted here, the former being north of the barn, and that described by subsequent witnesses being south of the barn. Proof of user of the one is of no value to establish the other. Hoyt v. Kennedy, 170 Mass. 54; Bushey v. Santiff, 86 Hun, 384. The period of alleged user of most importance is that from 1879 to 1907. Beyond question, the tenants of the claimant, or of her predecessors in title, during that period, used the alleged way each year exten
The testimony is undisputed, however, that during the alleged prescriptive period, the owners or tenants of the “ Whitton premises,” in various years, ploughed, seeded, cultivated, grew and gathered crops of hay, corn, and peas from that part of latter property affected by .the alleged easement. Twenty years did not elapse between such years of use of the exterior parcel. The courts have held, and it is our view, that these uses of the “ Whitton premises ” interrupted the user of the alleged way, destroyed its continuity and" thus were fatal to the claim of a prescriptive easement. Sears v. Hayt, 37 Conn. 406; Barker v. Clark, 4 N. H. 380; Aiken v. New York, N. H. & H. R. R. Co., 188 Mass. 547.
During the alleged prescriptive period, two or more conversations were had between the tenant of the “ Garvin premises,” and the owner or tenant of the “ Whitton premises,” regarding passage over the latter parcel. There is some uncertainty as to what was said, but it is perfectly clear that there was, at least, a recognition by the tenants bf the “ Garvin
We, therefore, find that the claimant was not the owner of. any easement or right of way over the ‘1 Whitton premises. ’ ’ She is entitled to an award of $200, with interest, as above stated.
Ackerson, P. J., concurs.
Ordered accordingly.