Chesnol v. Gallagher

283 A.D. 911, 129 N.Y.S.2d 876, 1954 N.Y. App. Div. LEXIS 5711

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 24, 1954
• Status: Published

Opinion

Appeal from a judgment of the Supreme Court, Saratoga County, entered upon the decision of an Official Referee in favor of the defendants in a trespass action; and from the order dismissing the complaint. Defendants are grantees under a deed of real property made by one Mary Carl Lobdell on October 21, 1942. The premises are situated west of the Saratoga Lake road in Saratoga County. At the time of the conveyance Mrs. Lobdell retained ownership of premises directly across the highway and between such highway and Saratoga Lake. In the conveyance to the defendants she gave a right of way across the retained premises, for pedestrian use only, to the lake. The deed does not specify the location of such right of way but refers to a map made by a surveyor a few days before the deed was executed. This map shows the approximate location of a right of way. It was subsequently filed in the County Clerks Office. Some two years later Mrs. Lobdell conveyed the retained premises, over which defendants claim an easement, to plaintiffs without mentioning any right of way. Subsequently she conveyed premises to the south, between the highway and Saratoga Lake, to one Lucille Elliott, and in this deed she provided for a right of way to defendants but at a different location or course than that approximately shown on the Flynn map. It is plaintiffs’ contention that the right of way shown on the Flynn map was only temporary, and that the proper right of way was fixed in the Elliott deed. The Official Referee rejected this contention, and we think the evidence, both documentary and oral, supports his decision. Judgment affirmed, with costs. Foster, P. J., Bergan, Coon and Imrie, JJ., concur.