Salmon v. Mack

In 1947, the defendants’ predecessors-in-title were deeded a 10-foot-wide easement along the western boundary of the grantor’s adjoining property for access to a public highway. The plaintiffs purchased the adjoining property (the servient estate) in 1984 and commenced this action in 1993, inter alia, for a declaration that the defendants had abandoned the easement. We agree with the court’s determination that the plaintiffs failed to meet their burden of proving, by clear and convincing evidence, that the defendants intended to abandon the easement (see, Consolidated Rail Corp. v MASP Equip. Corp., 67 NY2d 35, 39-40; Gerbig v Zumpano, 7 NY2d 327, 330-331; Wallkill Farms Homeowners Assn. v Velazquez, 205 AD2d 681). The plaintiffs’ remaining contentions regarding the existence and location of the easement are without merit. We note that since this is a declaratory judgment action, the court should have directed the entry of a declaration in favor of the defendants rather than dismissal of the first cause of action (see, Lanza v Wagner, 11 NY2d 317, 334, appeal dismissed 371 US 74, cert denied 371 US 901). Bracken, J. P., O’Brien, Joy and Goldstein, JJ., concur.