Heyman v. . Biggs

Chase, J. In 1892 the Norton Point Land Company was organized as a corporation for the general purpose of purchasing, selling and improving real property. Between the years 1892 and 1897 it became seized and possessed of a large tract of land at Sea Gate on Coney Island. It caused the same to be surveyed, platted and blocked for the purpose of selling and disposing of the same. In 1896 it caused a map of said property to be made and it was filed in the office of the register of the county of Kings on the 16th day of June, 1897. The court at Special Term found: “Fourth'. That for the purpose of making the said property at Sea Gate more valuable and more easily sold the Norton Point Land •Company laid out streets therein, and in such streets *121 installed prior to the year 1897 sewer pipes so as to form a complete-system by which the sewage from the houses to be built therein might be disposed of and also installed in said streets prior to the year 1897 water pipes so as to form a complete system by which the houses to be built therein might be supplied with- water.” After making and filing said map the land company caused to be published and distributed numerous circulars, booklets, advertisements and printed matter relative to its said property. The court found: “ Seventh. That in the said circulars and advertisements the said Norton Point Land Company stated and represented that there was at Sea Gate a complete system of sewer, water and gas mains for which there would be no assessment and that Sea Gate was a fully finished property and that the right to use the improvements introduced including sewers, macadamized roads, water, gas, and electricity passed with no assessment to purchasers.”- Included in the lands so acquired by said company was the lot afterward purchased by the plaintiffs and the lots afterwards purchased by the defendant Biggs herein mentioned. On October 20, 1897, the land company sold to James McAlley three lots of land known as numbers 19, 20 and 21 in block 17 as shown on said map. The land company gave to McAlley a warranty deed of said lots “ Together with the appurtenances and all the estate and rights of the said party of the first part in and to the said premises.” In said deed there are certain covenants and reservations relating to the use of said lots that are immaterial in the decision of this appeal. In 1899 the Sea Gate Association was organized under the Membership Corporations Law of this state, among other things “ To provide generally for the care, protection and maintenance of the property at Sea Gate *122 of its members and to promote social intercourse among its members and to ends aforesaid to acquire, take, hold and dispose of such property real and personal as the purposes of the association may require subject to such limitations as may be prescribed by law.” On the 26th day of February, 1901, by deed dated January 1, 1901, the land company sold to the Sea Gate Association “ The ocean beach at Sea Gate together with riparian rights, dock, gate entrance, stable and bath house and about one hundred lots of land.” The deed included Beach Fiftieth street and Surf avenue and the ocean front known as the Beach Reservation. By the deed the land company granted and released to the association the real property therein described bounded by certain streets “ together with all the right, title and interest of party of the first part of, in and to all improvements made in, under and upon any of the said streets by party of the first part, including the pavements, sidewalks, gutters, lamps, trees, .water mains or pipes, sewers, catch basins and connections, gas mains, pipes and connections, conduits, subways, poles and wires thereon, including the sewer pipes and all other pipes forming part of any system passing under or through any land of party of the first part not herein and hereby conveyed and the right of access thereto over the said lands, and to have the sewerage and surface water discharged through present outlet until suitable substitutes therefor shall be provided; franchises, rights, privileges and easements and the rights of the party of the first part to grant such franchises, rights, privileges or easements under, upon or in relation to the streets above enumerated subject, however, to any easements or rights now existing in respect to any of the same and to an easement or easements in favor of any and all of the lands still remaining the property of the party of the first part, and of any of the owners or occupants of any *123 of such land at any time of the same character and extent as is appurtenant to like lands heretofore sold and conveyed by the party of the first part.” Such deed to the association did not include the lot subsequently sold to the plaintiffs or the lot subsequently sold to McAlley, and thereafter acquired by the defendant Biggs. Among the sewers constructed in the streets of Sea Gate on or before the year 1897 was one in Surf avenue, which had its outlet to the ocean at a point some distance northerly of the lands of plaintiffs and the defendant Biggs. In the year 1901 and prior to June 1 of that year the land company made an outlet for the Surf avenue sewer over lot No. 1, as laid down on said map and the lands beyond the same to the ocean. The change in the place of outlet of the Surf avenue sewer did not in the slightest respect affect the practicability of obtaining access to that sewer from the lots fronting on Beach Fiftieth street through "such street. Thereafter, and on June 3, 1901, the land company sold . to said McAlley another lot adjoining those previously purchased by him known as lot No. L, in block 17. This lot was sold and conveyed by a warranty deed similar to the one previously given to him. On November 14, 1906, the land company conveyed to the plaintiffs said lot No. 1, by a similar deed. Lot No. 1 fronts on Surf avenue and extends westerly to Ocean View avenue. At a point less than one hundred feet southerly from said lot No. 1 is a street about one hundred feet long running at right angles from Surf avenue known as Beach Fiftieth street. The lands purchased by McAlley adjoin the beach reservation and face Beach Fiftieth street and abut said lot No. 1. While there are sewer, water and gas pipes in Surf avenue they have not been placed in Beach Fiftieth street. Each of said pipes, however, can be reached from the lands purchased by McAlley by a sixty-foot extension on Beach Fiftieth street from Surf *124 avenue and the sewer can also be reached by a few feet of excavation through Ocean View avenue which abuts the plaintiffs’ lot and corners on the McAlley lots. No building was erected on the plaintiffs’ or the McAlley lots for several years. Prior to 1908 McAlley died and his executors sold the four lots owned by him at the time of his death to the defendant Biggs. She became a member of the Sea Gate Association and at once erected a large building on her lots. The line of her lots is about eight feet from the sewer over and through lot No. .1 of the plaintiffs. She obtained water for her house by extending the water pipe from Surf avenue through Beach Fiftieth street to her property but as the cheapest method of reaching a sewer she ran her house sewer without the knowledge or consent of the plaintiffs across about eight feet of plaintiffs’ land to and connected the same with the sewer pipe that runs over the plaintiffs’ lot from Surf avenue to the ocean. A controversy arose between the association and Biggs over the use of her building as a boarding house, the detail of which is now unimportant. The association threatened to cut off the water and sewer connection to her house if she did not cease using the same as a boarding house. That threat resulted in an action by her against the association. (Biggs v. Sea Gate Association, 152 App. Div. 918; 211 N. Y. 482.) The action in which this appeal is taken was brought by the plaintiffs to restrain the defendants from maintaining the sewer over the about eight feet of their land between the land of Biggs and the sewer on plaintiffs’ lot mentioned. We think that they are entitled to the relief demanded. The right of the plaintiffs to the relief demanded involves the alleged right of the defendant Biggs to use the plaintiffs’ land through which to lay and maintain a sewer pipe from her lands to the sewer pipe maintained *125 by the association from Surf avenue through the plaintiffs’ lot and other lands to the ocean. If such a right exists it must arise by prescription or by express or implied grant. (Rice on Real Property, 441; 9 Ruling Case Law, 745.) It cannot have been granted by parol. (Wiseman v. Lucksinger, 84 N. Y. 31.) “An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.” (Real Property Law [Cons. Laws, ch. 50], § 242; Laws of 1909, chap. 52.) The defendant Biggs has no express grant of such" a right or easement and no such right or easement was reserved in the grant to the plaintiffs. No such right or easement can have arisen by prescription. It is said in 9 Ruling Case Law, 757, that “ Three things are regarded as essential to create an easement by implication on the severance of the unity of ownership in an estate; first, a separation of the title; second, that before the separation takes place, the use, which gives rise to the easement, shall have been so long continued and so obvious or manifest as to show that it was meant to be permanent; and, third, that the easement shall be necessary to the beneficial enjoyment of the land granted or retained.” In this case the unity of ownership has been severed, but the use which gives rise to the easement, if at all, did not exist prior to the severance of the unity of ownership and no necessity for the beneficial enjoyment of the land granted or retained exists or ever has existed. To create an easement by implication on the grounds *126 of necessity the necessity must exist in fact and not as a mere convenience. (Wells v. Garbutt, 132 N. Y. 430; Bauman v. Wagner, 146 App. Div. 195; Ogden v. Jennings, 62 N. Y. 526, 531; Brakely v. Sharp, 9 N. J. Eq. 9.) The defendant Biggs is not entitled to an easement over the plaintiffs’ land by reason of anything that occurred through the general advertisement of the property by the land company. As we have already seen from the findings quoted, the advertisement simply stated and represented that there was at Sea Gate a complete system of sewer, water and gas mains for which there would be no assessments. If the, representation was untrue it would not create an easement by implication or otherwise, but it was true so far as appears except perhaps to the extent that the association had failed to extend the sewer and water mains a few feet into Beach Fiftieth street. No right was reserved for the benefit of lands previously conveyed by the land company by reason of the provisions hereinbefore quoted from the deed given by the land company to the association. That deed conveyed the right, title and interest of the land company in and to the improvements in the streets of Sea Gate and in and to all pipes forming a part of the public utilities both in the streets- and under or through the lands then belonging to the land company and a “ right of access thereto over the said lands.” The right of access thereto clearly has reference to access by the association for purposes connected with the ownership' of the pipes. There is nothing in the deed from the land company to the association conveying a general right of access to any lot owner over lands not conveyed to the association for the purpose of lateral connections with a sewer pipe constituting a part of the sewage system of Sea Gate. Such a right if it exists at all *127 would inure to the benefit of all lots conveyed by similar grant and under similar circumstances. It would create such an intolerable burden that the deed to the association should not be construed to include such right unless the intention of the parties thereto to have it so construed is clear. No such construction is necessary or reasonable. There is nothing in such deed, it seems to us, on which to base a right to maintain the sewer from the lands of defendant Biggs over the plaintiffs’ land. The right to connect with the sewer, water and gas systems of Sea Gate is not disputed, but .by any fair construction of the deed such right is confined to making the connection in or through the streets owned by the association. A claim that an easement is included as an “ appurtenant ” to the lands conveyed to McAlley is completely answered by the fact that there was no visible or apparent easement from the McAlley lots to the lot now owned by the plaintiffs when McAlley took his deeds. The word “ appurtenant ” can properly be used to convey an easement already existing and apparent in connection with property conveyed but it is not sufficient to evidence a purpose of creating an easement when none existed prior to the time of the conveyance. (Parsons v. Johnson, 68 N. Y. 62.) The defendant Biggs, as the owner of the lots conveyed to McAlley, was entitled to the use of the public utilities of Sea Gate, and also to the use of the streets thereof to enable her to enjoy such utilities. Such right can doubtless be enforced against the association. It is needless at this time to discuss the rights of the defendant Biggs as against the land company or the association. Right of access by the owners of lots fronting on Beach Fiftieth street over such street to connect with the sewer, water and gas mains in Surf avenue cannot be disputed by the association. It apparently is not disputed as it *128 was admitted by an officer of the land company and of the association when he was a witness on the trial of this action. Any question relating to the expense of placing the sewer a few feet in Beach Fiftieth street or whether the same should be borne by the owner of the lots adjoining the street or by the association is not now material. The right of sewage over Beach Fiftieth street eliminates all question of an implied right by necessity on the part of the defendants over the plaintiffs’ lot. It appears that the association connected the sewer from the Biggs house with the sewer on the plaintiffs’ lot running from Surf avenue to the ocean and that it was paid therefor the sum of twenty dollars. It does not, however, appear that the association had any right or authority upon the plaintiffs’ lot other than to maintain the sewer from Surf avenue and to enter upon the lot for the care and repair of such, sewer. An action in equity will lie to restrain the maintenance of an easement when such maintenance is continuous and an action at law relating thereto will be inadequate. (Wheelock v. Noonan, 108 N. Y. 179.) There is nothing in the opinion of this court in Biggs v. Sea Gate Association (supra) affecting the plaintiffs’ right to maintain this action. That action was decided upon the facts then presented, expressly leaving the rights of persons not parties to that action undetermined. We do not think that the findings of the Special Term sustain the conclusions of law or the judgment entered upon such findings. It appears from such findings that the defendants trespassed upon the plaintiffs’ land and that the prayer of their complaint should hve been granted. The judgment should be reversed and judgment granted in accordance with the opinion of Chase, J., with costs in all courts against the defendant, The Sea Gate Association.