Sauchelli v. Fata, 306 N.Y. 123, 116 N.E. 2d 75 (1953); Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 118 N.E. 2d 444 (1954)

Vaccaro, Anthony J.

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Buffalo Law Review Volume 4 Number 1 Article 55 10-1-1954 Property—Real Property—Easements Anthony J. Vaccaro Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the Property Law and Real Estate Commons Recommended Citation Anthony J. Vaccaro, Property—Real Property—Easements, 4 Buff. L. Rev. 105 (1954). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol4/iss1/55 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS, 1953 TERMof voters.54 In Matter of Aurelio,'5 the court took a definite standon the grounds that a, "strict observance of the letter of the stat-ute would interfere unnecessarily with the intelligent and 'readyexpression of his choice by an independent voter."' 56In the instant case, the court affirmed, per curiam, the orderof the Appellate Division which followed the Aurelio case andheld that a strict construction of the statute would be unconstitu-tional and denied the application to change the format.X. PROPEBTYA. Real PropertyEasementsEasements in public streets may be acquired in the followingways: (1) By condemnation proceedings under a statute. (2) Byprescription, or where land is used by the public for twenty yearswith the knowledge, but without the consent of the owner. (3) Bydedication through offer and implied acceptance, or when the ownerthrows open his land intending to dedicate it for a highway and thepublic uses it for such a length of time that they would be seriouslyinconvenienced by an interruption of the enjoyment. (4) By dedi-cation through offer and actual acceptance, where the ownerthrows open his land and by acts or words invites acceptance ofthe same for a highway, and the public authorities formally or interms accept it as a highway.'In Sauchelli v. Fata,2 the owners of property abutting sides ofa blind alley sought to enjoin defendants whose property abuttedthe dead end from using the land for ingress and egress. Afterfinding that the plaintiffs had easements of access in the propertythe court granted the injunction on the grounds that defendantsfailed to show acceptance by the town as a public highway andsince they had ready access to their land which faced another54. Matter of Callaghan z. Voorhis, 252 N. Y. 14, 168 N. E. 447 (1929). The courtsaid that the statute prejudiced the independent body as they had nominated almost afull row of candidates and a voter would think that no one had been nominated forthat office upon seeing the blank.Matter of Crane v. Voorhis, 257 N.Y. 298, 178 N.E. 169 (1931). Here thestatute said in substance that if an independent body, who had not nominated candidatesfor more than fifty percent of the offices to be filled, nominated a candidate who wasalso a nominee of one of the other political partys, his name would only appear oncewith both names and emblems. The court held this unconstitutional.55. 291 N.Y. 176. 51 N.E. 2d 695 (1943).56. Id. at 180, 51 N.E. 2d at 697.1. Nicholas Copper Co. v. Contolly, 208 App. Div. 667, 203 N.Y. Supp. 839(2d Dep't 1924), af'd, 240 N. Y. 596 (1925).2. 306 N.Y. 123, 116 N.E. 2d 75 (1953).BUFFALO LAW REVIEWstreet, there was no easement of necessity. The fact that plaintiffspaid no taxes on the land although it was located on a tax map didnot evidence acceptance by public authorities.3In Loch Sheldrake Associates v. Evans,4 the court dividedsharply over the interpretation of a reservation of water rights.Through a remote common grantor the plaintiff owned a lake andits shores subject to the reservation while the defendant owned amill lot- and the disputed reservation. The mill is no longer inoperation and the plaintiff sought to enjoin defendant from usinglarge quantities of water for her nearby hotel. In substance thereservation contains the right to impound and draw water as wellas a right of ingress and egress to construct and maintain a damand any pipe lines existing or hereafter constructed. The useof the water is limited by the natural high and low level watermarks.The majority felt that the words of the deed were plain andthat there was no need to resort to additional circumstances. Thecontention that defendant had only an easement appurtenant tothe mill lot was rejected because no reference was made to themill lot in the deed. While admitting that the phrase "easementin gross" enjoyed popular usage, the court pointed out the tech-nical impossibility of such a thing. The nature of an easement pre-supposes two distinct tenements, one dominant and the otherservient5 The court concluded that the defendant had an absoluteinterest in the nature of a right to take profits, citing Huntingtonv. Asher8 and Saratoga State Waters Corp. v. Pratt.7  The ma-jority would'have given defendant exclusive right to the water forany purposes limited only by the natural water marks. However,since only the plaintiff had appealed, the court could not broadenthe defendant's rights and therefore affirmed the Appellate Divi-sion's decision' allowing defendant to use the water for any ofthe purposes for which the grantor had used it, one of which wassupplying water for the hoteLThe dissent felt that a reference to pipe lines which were in ex-istence made the deed ambiguous, and, as an ambiguous deedshould be interpreted in favor of the grantee,9 surrounding circum-stances being considered,' 0 the defendant should have been allowed3. See Johnson v. City of Niagara Falls. 230 N. Y. 77, 192 N. E. 213 (1920).4. 306 N.Y. 297, 118 N.E. 2d 444 (1954).5. Pierce v. Keaton, 70 N.Y. 419 (1877).6. 96 N.Y. 604 (1884).7. 227 N.Y. 429, 125 N.E. 834 (1920).8. 280 App. Div. 51, 111 N.Y. S. 2d 365 (3d Dep't 1952).9. Matter of City of New York, 209 N.Y. 344, 103 N.E. 484 (1913).10. Wilson v. Ford, 209 N.Y. 186, 102 N.E. 614 (1913).THE COURT OF APPEALS, 1953 TERMto prove that an easement appurtenant to the mill lot had in factbeen contemplated. In that event the amount of water availableto defendant would be controlled by the quantity which the grantorhad used for the mill, the present use of water being irrelevant.11. The dissenters, citing Flora v. Carbean2 and Matter of Find-lay1 3 further maintained that since both parties had agreed in thelower courts that the right in question was an easement appir-tenant to the mill lot, the Court of Appeals had no right to aban-don that theory which would have produced a different result.Restrictive CovenantsA restrictive covenant provided that land could not be usedfor:(1) A commercial garage, or automobile parking lot(2) A public garage or public automobile filling station.(5) Clubs, lodges, and social buildings in which dancing orbowling may be an incidental use; . . .A development association attempted to enjoin the owners ofa refreshment stand from using part of their land as parking areafor patrons.1 4The court felt that the meaning of the restriction was clearfrom the covenant itself. "Parking lot" considered in conjunc-tion with commercial garage indicated that the land could not beused for the business of storing automobiles for a stipulated price.If a public parking lot were intended to be prohibited, it wouldhave been so stated in the restriction on public garages. Thecourt also rejected the contention that incidental parking wasrestricted, because the covenant expressed clarity when incidentaluse of the land was prohibited as in clause number five, supra.The court did not rest solely on what appeared plain to them,but recognized that the spirit of our law favors the free and un-obstructed use of property, 5 and applied the rule that if a re-strictive covenant is capable of more than one interpretation, itwill be construed against the party attempting to extend it.'611. Comstock v. Johnson, 46 N.Y. 615 (1871) ; 3 FARNHAM, WATERS AND WATERRIGHTS 2286 (1904).12. 38 N.Y. 111 (1868).13. 253 N.Y. 1, 170 N.E. 471 (1930).14. Premium Point Park Ass'n. v. Polar Bar, 306 N.Y. 507, 119 N.E. 2d 360(1954). See Schoonmaker v. Hecksher, 171 App. Div. 148, 157 N.Y. Supp. 75 (1stDep't 1916), aff'd, 218 N. Y. 722, 113 N.E. 1066 (1916).16. Ibid; See Buffalo Academy of the Sacred Heart v. Boehm, 267 N.Y. 242,196 N.E. 42 (1935).107

Property—Real Property—Easements

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Property—Real Property—Easements

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