268 A.D. 170 | N.Y. App. Div. | 1944
By suit in equity, the plaintiff-appellant prayed that the defendant-respondent lie enjoined from using a portion of the plaintiff-appellant’s property as a roadway and for damage for use.
From here on reference is made to the parties as appellant and respondent.
The respondent by her answer admitted the use of such premises as a driveway but claimed that she did so by an adverse user which had ripened into a prescriptive right. The appellant and the respondent own adjoining premises and the portion of the driveway in suit was used by the respondent as a means of entry to her premises. The court below found for the respondent as to adverse user and prescriptive right for such use during a sufficient period of time of occupancy by the respondent and her predecessor in title. There was no proof or finding of damage. Appeal has been taken to this court from the judgment entered below on the trial court’s decision. The proof below was ample to sustain findings of open and notorious use of the portion of the driveway in question by the
The action was brought by service on the respondent January 17, 1942. Prior to October 27, 1925, one John Bobb, who was the predecessor in title of both the respondent and the appellant in what is now their adjoining properties, had ownership of a large tract of land which contained these two parcels. On October 27, 1925, John Bobb sold and transferred to one George Bobb the southerly parcel now owned by the appellant who succeeded George Bobb in title November 16, 1938. Intermediate the transfer of the southerly parcel by John Bobb to George Bobb, and the further transfer of such southerly parcel from George Bobb to the appellant, John Bobb died (September 20, 1926) and title to the northerly parcel passed on November 8, 1926, from his representatives to the respondent pursuant to a contract of sale made between respondent’s husband and those representatives. The date of the deed of such northerly parcel to the respondent is February 4, 1927. The deed from John Bobb to George Bobb of the southerly parcel contained no reservations of any sort by the said John Bobb and was a warranty deed in character. The two adjoining southerly and northerly parcels of land owned by the appellant and the respondent face a highway known as Mitchell Boad, in the town of Greece, county of Monroe. For some years prior to the death of John Bobb and during his ownership of both the southerly and northerly parcels and the other contiguous lands, there was an approach by a driveway from Mitchell Boad across the southerly parcel now owned by the appellant and running onto the northerly parcel now owned by the respondent. After John Bobb had transferred the southerly parcel to George Bobb, he (John Bobb) continued to use such
In order to affirm the judgment, it is necessary for us to say that for at least fifteen years during the user of the driveway in dispute by the respondent, either the respondent or her grantor of title (John Bobb) had open, notorious, adverse, continuous and uninterrupted use of the portion of the driveway in question as against the rights of the appellant and her predecessor in title. (Bushey v. Santiff, 86 Hun 384; Olofson v. Malpede, 127 Misc. 813; Sewall v. FitzGibbon, 233 App. Div. 70.) The trial court has found that the user of the respondent was interrupted in 1941 by the appellant, and in order to
The deed from the representatives of John Bobb to the respondent was warranty in nature, described the northerly parcel, and contained the verbiage “ Together with the appurtenances and all the estate and rights of the parties of the first part in and to said premises.” The respondent contends that “ appurtenances ” include the use of that portion of the driveway which is on the lands of the appellant. Except for necessities, “ appurtenances ” include only that which is contained within the boundaries of the land demised. (Belotti v. Bickhardt, 228 N. Y. 296; Frensdorf v. Stumpf, 30 N. Y. S. 2d 211; Root v. Conkling, 199 App. Div. 90.)
There being available other. means of approach from the driveway to the northerly parcel, that portion of the driveway on the southerly parcel was not a necessity to the use of the northerly parcel. Even if it were, John Bobb had no right to deed the same after granting title to the southerly parcel without reservation to the appellant’s grantor. In the contract of sale of the northerly parcel to the. respondent’s husband, which contract led to the transfer of title to the respondent, the only reference to “ appurtenances ” in such contract is in a paragraph which reads as follows: “ A: fixtures including heating, lighting and plumbing, shades, linoleum on floors, and all regular appurtenances in and a part of said property to be left upon the premises.” It is evident that in using the word “ appur
The court below has found that the respondent did not have an uninterrupted adverse use of the portion of the driveway which is on the appellant’s premises. There could be no “ tacking ” of the right of John Robb, because John Bobb had no prescriptive right by adverse user to the land in dispute, and because there is no privity of estate as to such land in dispute between John Bobb and his representatives, on one hand, and the respondent, on the other hand. His representatives transferred by their deed only that which was contained within the boundaries contained in such deed and did not and could not have transferred an easement by adverse prescriptive use which John Robb himself did not hold. (Rogoff v. Vanderbilt Sons Corp., 263 App. Div. 841, affd. 290 N. Y. 666; Jones on Easements, § 136, p. 111.)
The judgment below should be reversed and in its place judgment granted in favor of the appellant perpetually enjoining the respondent from trespassing on any and all of that portion of the driveway located on the southerly parcel and owned by the appellant.
Finding of fact numbered 8 and conclusions of law should be reversed and a new finding and conclusions made.
All concur. Present — Cunningham, P. J., Taylor, Dowling, Harris and McCurn, JJ.
Judgment reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff with costs, perpetually restraining the defendant from trespassing on any or all of that portion of the driveway located on the parcel owned by plaintiff. Certain finding of fact and conclusions of law disapproved and reversed and new finding and conclusions made.