Opinion
June 28, 1949.
Action by respondent for a declaratory judgment and relief by way of injunction. Appellant and respondent are owners of adjoining real property, formerly owned as one parcel by one Copland. In 1939 and prior thereto this property was assessed as a single parcel, and there were levied against it school taxes for 1938-39 and town taxes for 1939. Pipes for supplying gas and water were laid, while the property was under single ownership, to the building erected on appellant's property, and through respondent's property beneath the surface of the ground. On October 1, 1942, Copland conveyed to appellant the property which she now owns and occupies, by deed which made no specific mention of the gas and water pipes, but which conveyed the property with "the appurtenances". Prior to this conveyance the County of Nassau had acquired, by purchase, the lien of the 1938 and 1939 taxes, affecting the entire property, but on the conveyance to appellant these taxes were apportioned, and the taxes on the property conveyed to appellant were paid, presumably to the County of Nassau. In 1943, the property at present owned by respondent was conveyed by the County Treasurer of Nassau County to the County of Nassau, by deed, pursuant to the provisions of the Nassau County Administrative Code, and subsequently was conveyed by the county to respondent, who at the time of such conveyance knew of the existence of the pipes beneath such property, supplying gas and water to appellant's property. Judgment in favor of respondent, adjudging that appellant has no right to use such pipes, and enjoining such use, reversed on the law and the facts and a new trial granted, with costs to appellant to abide the event. On the conveyance by Copland to appellant of the property now owned by appellant, with the appurtenances, she acquired the right to continue to use the pipes laid through respondent's property, for the purpose of supplying gas and water to her property, and to maintain them for that purpose. (Cf. Paine v. Chandler, 134 N.Y. 385; Spencer v. Kilmer, 151 N.Y. 390; Goldstein v. Hunter, 257 N.Y. 401.) The trial court did not decide, however, and we are unable to determine on this record, whether respondent, by his conveyance from the county, acquired title to the property which he now owns, relieved of the burden of the easement created at the time of the conveyance by Copland to appellant. (Cf. Tax Lien Co. v. Schultze, 213 N.Y. 9; Lee v. Farone, 261 App. Div. 674, affd. 288 N.Y. 517; Jackson v. Smith, 153 App. Div. 724; Blenis v. Utica Knitting Co., 73 Misc. 61.) Appeal from order denying motion for a new trial on the ground of newly discovered evidence dismissed, without costs.
Nolan, P.J., Carswell, Sneed and Wenzel, JJ., concur; Adel, J., dissents and votes to affirm, with the following memorandum:
The proof in this record does not establish an easement over the respondent's land by grant nor by implication.