Grant v. Kustas

Judgment reversed upon the law and the facts, with costs, and judgment granted for defendants dismissing complaint, with costs. By the deed set forth in the complaint by which respondent acquired title to the storage warehouse and right of ingress and egress over the right of way in question, respondent acquired no right whatever to use the same in connection with any other premises. The owner of the lands located between the right of way in question and respondent’s premises on Main street had no right, title or interest in the right of way and could not convey any to respondent. The easement acquired by respondent could be used only in connection with the storage warehouse to which it is appurtenant. (McCullough v. Broad Exchange Co., 101 App. Div. 566; affd., 184 N. Y. 592; Wilson v. Ford, 209 id. 186.) The walls erected by appellants were division fences which appellants, as owners of the servient estate, had the right to erect for their convenience and the protection of their property. (Brill v. Brill, 108 N. Y. 511, 517; Dixon v. Clow, 24 Wend. 188; Andrews v. Cohen, 221 N. Y. 148, 155.) Said walls in no way interfered with respondent’s lawful use of the right of way. The gate erected in the right of way by appellants was lawfully erected for the protection of the property. It was not such a structure as was prohibited by the terms of the conveyance. Lazansky, P. J., Young, Hagarty and Seeger, JJ., concur; Carswell, J., concurs as to west wall and gate on north, but dissents as to east wall; as to the latter he votes to affirm.