D'Ambro v. Squire

Peters, J. Appeal from an order of the Supreme Court (Viscardi, J.), entered April 13, 1993 in Washington County, which, inter alia, partially granted plaintiffs cross motion for summary judgment. Plaintiff owns a parcel of real property in the Town of Easton, Washington County, approximately one-half mile east of County Highway 113. Plaintiff’s parcel abuts the easterly line of a highway in the Town known as Verbeck Avenue. Defendants own land on both sides of Verbeck Avenue between plaintiff’s parcel and Highway 113. Plaintiff commenced this action for a declaratory judgment establishing his right-of-way over a roadway crossing defendants’ land. Defendants’ answer raised certain affirmative [922] defenses and counterclaims which, inter alia, challenged plaintiff’s claim to a right-of-way or other easement crossing defendants’ land. Defendants thereafter moved for summary judgment based upon the authority of Daetsch v Taber (149 AD2d 864), contending that plaintiff was not entitled to a finding of easement by implication or necessity over his property even if Supreme Court found an abandonment of the highway because of the lack of a common grantor. Plaintiff cross-moved for summary judgment to dismiss the answer, affirmative defenses and counterclaims based upon an affidavit of counsel which annexed an abstract of title and survey maps of plaintiff’s land, together with a topographical map of Washington County, all supporting the contention that plaintiff’s and defendants’ title could be traced to a common grantor. Supreme Court denied defendants’ motion and granted plaintiff’s cross motion to the extent that it determined that plaintiff’s land was benefited by a right-of-way and easement running from Highway 113 through defendants’ land. Defendants appeal. Unity and subsequent separation of title must be established by a showing of a "common grantor” to establish either an easement by implication or easement by necessity. We find that Supreme Court properly found unity and subsequent separation of title whereby the subject lands were conveyed from a common grantor (see, Kent v Dutton, 122 AD2d 558). The record further establishes that the common grantor owned both the land and roadbed in fee (see, supra) and that at the time Samuel Chase and Frances Chase conveyed the parcel to William Travis, plaintiff’s predecessors in title, the use of the public highway as a means of accessing what is now Highway 113 was necessary to the enjoyment of the retained land (see, Holloway v Southmayd, 139 NY 390). We agree with Supreme Court to the extent that it found plaintiff’s lands to be benefited by a right-of-way and easement which follows the old public highway. Finally, we find no merit in defendants’ contention that plaintiff abandoned the easement. While it is true that an easement created by grant may be lost by abandonment, nonuse alone does not result in an abandonment no matter how long it continues (see, Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39). "A party relying upon another’s abandonment of an easement by grant must produce 'clear and convincing proof of an intention to abandon it’ ” (supra, at 39, quoting Hennessy v Murdock, 137 NY 317, 326). Defendants’ verified answer and counterclaim alleges nonuse [923] of the roadway for 50 years. However, defendants have proffered no evidence to establish any intention of plaintiff or his predecessors in title to relinquish their rights in the easement. Crew III and Weiss, JJ., concur.