Opinion
July 7, 1955.
Appeal from Supreme Court, Rensselaer County.
The action is brought under article 15 of the Real Property Law to determine plaintiffs' right of ingress and egress to and from her property, and for damages for withholding such right. Plaintiffs' property is surrounded by defendant's property, the shore of a lake and an adjoining cottage lot. Plaintiffs have no means of gaining access to a public highway except by crossing defendant's land or the lands of the adjoining cottage lot. Clearly plaintiffs are entitled to a right of way by necessity across one or the other. The owners of the adjoining cottage lot were not made parties to this action. If this judgment is permitted to stand and plaintiffs are required to bring a separate action against the other lot owner it is entirely possible that plaintiffs, if unsuccessful in that action, would be defeated in obtaining any right of way. It appears from the record that plaintiffs in the past have used a right of way over the defendant's property for a long period of time, and the record at least suggests the possibility of a definitely located right of way by adverse possession. The record is vague and unsatisfactory as to the precise location of any right of way previously used through either property, and no findings were made in the court below and no opinion was written, in accordance with sections 439 and 440 of the Civil Practice Act. In such state of the record the matter must be reversed and remitted in any event for proper findings, and because of the state of the record generally we think that in the interest of justice a new trial should be had. The judgment is reversed, on the law and facts, and a new trial ordered, with leave to plaintiffs to serve such amended pleadings as they may be advised, with costs to abide the event. Foster, P.J., Bergan, Coon, Halpern and Imrie, JJ., concur.