Opinion
July 10, 1967
Judgment of the Supreme Court, Westchester County, dated January 17, 1967, modified on the law and the facts by (1) striking out the decretal paragraph thereof, and (2) substituting therefor a provision declaring (a) that defendant Richard Quinlan had, as of the time of the commencement of the action, an easement by prescription in the use of the subject sewer pipe on plaintiffs' land, and (b) that all the other defendants have no right or easement therein. As so modified, judgment affirmed, without costs. In this action plaintiffs seek a judgment (1) declaring that defendants have no right to use a sewer pipe which runs under plaintiffs' land, (2) enjoining defendants from using same, and (3) awarding to plaintiffs damages for removal of the alleged encroachment. All of the parcels here involved were, prior to July 14, 1924, parts of a single tract which was, on that date, conveyed to Bleakley Realty Company, Inc., subject "to the right to maintain the present sewer pipe, if any, running * * * across the lots herein above described until a sewer is installed so that the said mansion may be otherwise supplied." (The "mansion" was a building then existing. It was demolished in 1955.) Sewers were installed in adjacent streets in 1927. At that time, the mansion could have been otherwise supplied and thus, by its terms, the restriction came to an end and there was no longer any right on the part of the defendants, or their predecessors, to use the subject sewer pipe running across their land and plaintiffs'. Nevertheless, the record clearly establishes that, as respects defendant Richard Quinlan and his predecessors, the pipe was used openly and without interruption or dispute, for 38 years prior to the commencement of this action. Accordingly, and for the reasons stated in the opinion of the Justice at Special Term, defendant Richard Quinlan had, at the time of the commencement of this action, an easement by prescription in the use of the subject sewer pipe. No such right inured to his wife, "Mary" Quinlan, who, concededly, was named as a party defendant in the mistaken belief that she had some interest in the property. The uncontroverted proof shows that the McGeory house was at all times connected only with the city sewer, and said defendants disclaim any right to an easement in the subject sewer pipe. Therefore, there is no basis for a finding that they acquired such an easement by prescription. Defendants Wanderman and Levis defaulted. Since it does not appear that the defendants other than Richard Quinlan intend to make use of the pipe in the future, an injunction against them would be inappropriate ( People v. Canal Board, 55 N.Y. 390; De Raay v. De Raay, 255 App. Div. 544, affd. 280 N.Y. 822); and since they did not place or maintain the sewer pipe on appellants' premises, there is no basis for awarding damages against them in plaintiffs' favor. Christ, Acting P.J., Brennan, Hopkins, Benjamin and Munder, JJ., concur.