Tauber v. Spring Valley Water
226 A.D.2d 523, 641 N.Y.S.2d 104 N.Y.A.D. 2 Dept. 1996
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Supreme Court, Appellate Division, Second Department, New York.
Michel TAUBER, et al., Appellants,
v.
SPRING VALLEY WATER COMPANY, Defendant,
Yeshiva Shaar Ephraim, Respondent.
April 15, 1996.
Michel TAUBER, et al., Appellants,
v.
SPRING VALLEY WATER COMPANY, Defendant,
Yeshiva Shaar Ephraim, Respondent.
April 15, 1996.
Background: Property owners brought action against water utility and adjacent lot owner, seeking declaratory judgment that defendants did not have easement for utility purposes over owners' property. Adjacent owner moved for summary judgment. The Supreme Court, Rockland County, Miller, J., granted motion. Property owners appealed. The Supreme Court, Appellate Division, held that adjacent owner had not abandoned ingress, egress, and utility easement over property, despite contention that easement was abandoned through nonuse for period of more than ten years and acts that implied abandonment.
Affirmed.
West Headnotes
[1] KeyCite Notes
141 Easements141I Creation, Existence, and Termination141k30 Abandonment or Nonuser141k30(2) k. Easements Created by Grant or Reservation. Most Cited CasesAdjacent lot owner had not abandoned ingress, egress, and utility easement over property, despite contention that easement was abandoned through nonuse for period of more than ten years and acts that implied abandonment; property owners failed to present evidence of any acts which showed intent to abandon easement, and deeds in chain of title of property clearly demonstrated grant of easement and did not demonstrate any termination of easement.
[2] KeyCite Notes
141 Easements141I Creation, Existence, and Termination141k30 Abandonment or Nonuser141k30(1) k. In General. Most Cited CasesNonuse of easement does not create abandonment, no matter how long it continues.
**104 (Cite as: 226 A.D.2d 523, 641 N.Y.S.2d 104, **104)
Dennis G. Katz, P.C., Spring Valley, for appellants.
Benjamin Ostrer, P.C., Chester, for respondent.
John P. Wallace, Yonkers, for defendant Spring Valley Water Company.
Before *524 (Cite as: 226 A.D.2d 523, *524, 641 N.Y.S.2d 104, **104)
O'BRIEN, J.P., and RITTER, HART and GOLDSTEIN, JJ.
MEMORANDUM BY THE COURT.
*523 (Cite as: 226 A.D.2d 523, *523, 641 N.Y.S.2d 104, **104)
In an action, inter alia, for a judgment declaring that the defendants do not have an easement for utility purposes over the plaintiffs' property, the plaintiffs appeal from a judgment of the Supreme Court, Rockland County (Miller, J.), entered February 2, 1995, which, upon an order of the same court dated January 4, 1995, granting the motion of the defendant Yeshiva Shaar Ephraim for summary judgment dismissing the complaint insofar as it is asserted against it, declared that it has an easement over the plaintiffs' property which is in full force and effect.
ORDERED that the order and judgment is affirmed, with costs.
[1]
The original owner of the property in question expressly granted an easement for ingress, egress, and utility purposes over lots owned by the plaintiffs to benefit the adjacent lots, including the lot owned by the defendant Yeshiva Shaar Ephraim. The plaintiffs contend that the easement was abandoned through non-use for a period of more than 10 years and acts that imply abandonment.[2]
Non-use of an easement does not create abandonment no matter how long it continues ( see, Wallkill Farms Homeowners Assn. v. Velazquez, 205 A.D.2d 681, 682, 613 N.Y.S.2d 641; Route 22 Assocs. v. Cipes, 204 A.D.2d 705, 706, 613 N.Y.S.2d 33). The plaintiffs failed to present evidence of any acts which show an intent to abandon the easement ( see, **105 (Cite as: 226 A.D.2d 523, *523, 641 N.Y.S.2d 104, **105)Wallkill Farms Homeowners Assn. v. Velazquez, supra ). The deeds in the chain of title of the property clearly demonstrate the grant of an easement and do not demonstrate any termination of the easement.
The plaintiffs' remaining contentions are without merit.
Copr. (C) West 2006 No Claim to Orig. U.S. Govt. Works N.Y.A.D. 2 Dept.,1996.
Tauber v. Spring Valley Water Co.
226 A.D.2d 523, 641 N.Y.S.2d 104
