105 Misc. 485 | N.Y. Sup. Ct. | 1918
The plaintiff acquired an easement, not only in the street upon which his lot fronts but in Beach avenue to the full width shown upon the map according to which the conveyance was made and also in the 150 foot plot. The conveyance calls for a lot on Bietry Beach park of certain dimensions according to a map which shows the 150 foot plot designated on its north line as Bietry Beach. The Bietry Beach park referred to in the conveyance to the plaintiff does not stop at Beach avenue but extends northerly so as to include the 150 foot plot. The lines of Bietry Beach park which widen toward the lake show an intention to provide the open space shown on the map and labeled Bietry Beach as a part of the park for the use of the plaintiff and other lot owners and as a means of access to Lake Ontario, a public highway. The laying out of Beach avenue as shown on the map according to which the lot of plaintiff was sold also constitutes a dedication for his use and that of other lot owners in the tract. The defendant in laying out this tract into streets and lots attracted purchasers by the manner in which he had laid it out and particularly by the fact that he had indicated a plot of ground fae
This conclusion is not affected by the obstructions which were placed along Beach avenue and through the 150 foot plot. They were in existence when the defendant conveyed the lot and if he desired to narrow his conveyance he should have so specified. Haight v. Littlefield, 147 N. Y. 338, 342.
There was no loss of the easement by prescription. Welsh v. Taylor, 134 N. Y. 450; Heughes v. Galusha Stove Co., 133 App. Div. 814, 819. Mere non-user will not defeat the easement. Welsh v. Taylor, supra; Snell v. Levitt, 110 N. Y. 595; Heughes v. Galusha Stove Co., supra. There is no evidence of an intention to abandon the easement sufficient to defeat it. Heughes v. Galusha Stove Co., supra.
The plaintiff is entitled to a 'decree as prayed for with costs.
Judgment accordingly.