Opinion
276 A.D. 787 92 N.Y.S.2d 537 JACOBSON v. LUZON LUMBER CO., Inc., et al. Supreme Court of New York, Third Department November 16, 1949
Louis B. Jacobson sued Luzon Lumber Company, Incorporated, and others to establish an implied easement.
The Supreme Court, Trial Term, Sullivan County, at Monticello, Francis Bergan, J., 192 Misc. 183, 79 N.Y.S.2d 147, entered a judgment and both parties appealed.
The Appellate Division, in a Per Curiam opinion, affirmed the judgment, and held that the findings of fact were sufficient to establish the easement and were amply supported by evidence.
In action to establish an implied easement, findings of fact were sufficient to establish the easement and were amply supported by evidence.
Lazarus I. Levine, Hurleyville, for respondent-appellant.
Samuel Penski, Hurleyville (Bliss & Bouck, Schoharie, of counsel), for appellants-respondents.
Before FOSTER, P. J., and HEFFERNAN, BREWSTER, DEYO and SANTRY, JJ.
PER CURIAM.
Appeals by plaintiff and defendants from a judgment of the Supreme Court rendered upon a decision after trial by the Court at a Trial Term at Monticello (Bergan, J.), and entered in the office of the clerk of Sullivan County, July 13, 1948-the plaintiff appealing only from the part of the judgment which limited and qualified his right to the use of a driveway as an easement by implication.
The findings of fact were sufficient to establish the easement which was declared and adjudged, and they were amply supported by evidence.
Judgment affirmed, without costs. FOSTER, P. J., and BREWSTER, DEYO and SANTRY, JJ., concur.
HEFFERNAN, J., dissents in a memorandum.
HEFFERNAN, Justice.
I dissent and vote to reverse the judgment under review on the law and facts and to dismiss the complaint on the merits and to award defendants a judgment in their favor as demanded in the answer with costs in all courts.
When plaintiff's mother purchased this property on May 25, 1931 from the common grantor she received the usual warranty deed which is clear and unambiguous. That deed describes the lands conveyed by metes and bounds and iron pins. Defendant Luzon Lumber Company acquired its title on September 17, 1934 from the same grantor. That deed also was unambiguous. Neither deed makes any mention of any easement. Plaintiff's predecessor was quite familiar with the property and it must have been perfectly obvious to her that she was not acquiring any right of way. Notwithstanding this proof it has been found that plaintiff and his predecessor in title acquired an implied right of way by necessity over defendants' lands. The deed from the common grantor to plaintiff's predecessor not only does not convey the driveway or any interest therein but clearly indicates a contrary intention. If plaintiff's predecessor acquired no easement in the driveway when she made her purchase certainly it cannot be said that one existed in 1934 when defendants' predecessor acquired the property. If a right of way was conveyed by implication in 1931 then notice thereof to defendant Luzon Lumber Company Inc. either actual or constructive was required at the time it purchased the property in 1934. Under these circumstances the deed to plaintiff's predecessor in title not only did not convey a right of way but clearly excluded it. Certainly the deed to defendants' predecessor conveys the lands now owned by defendants free of any easement or other encumbrance.