41 A.D.2d 575 | N.Y. App. Div. | 1973
Appeal from a judgment of the Supreihe Court, Franklin County, entered upon a decision of the court at Trial Term, without a jury, dismissing plaintiffs’ complaint and enjoining them from trespassing upon the defendants’ property. The litigants are owners of cottage lots located on the shores of Eagle Lake in the Town of Duane, Franklin County. Appellants seek to establish a right of way across respondents’ lot to afford them access to their lot. The trial court held that no easement had been established and the instant appeal ensued. Admittedly appellants do not have an express grant of an easement. They urge, however, that they have an easement by implication. We cannot agree. Two types of implied easements which could conceivably apply here are those in which there was an apparent pre-existing use at the time the common owner severed his land and where the easement is necessary for the proper enjoyment of the land (see generally 17 N. Y. Jur., Easements and Licenses, § 44). The latter is clearly not established here with respect to respondents’ property. A way of necessity must be strictly necessary (Matter of City of New York [Avenue K, Brooklyn], 250 App. Div. 137, affd. 274 N. Y. 503) and since appellants’ land is accessible by navigable water which the appellants have the right to use, no way of necessity exists (Moore V. Day, 199 App. Div. 76, affd. 235 N. Y. 554; Staples v. Cornwall, 114 App. Div. 596, affd. 190 N. Y. 506; see, also, Anno., 9 ALR 3d 600; 17 N. Y. Jur., Easements and Licenses, § 93). Moreover, the former common owner of both lots simultaneously conveyed them to the separate predecessors of the litigants, thus precluding the finding of a way of necessity since to do so would require the declaring of the way across the land of a stranger (Garvin v. State of New York, 116 Mise. 408; 17 N. Y. Jur., Easements and Licenses, § 88). As
