Hatcher v. Wasserman

92 Misc. 263, 155 N.Y.S. 714

• Court: New York Supreme Court
• Decided: November 15, 1915
• Status: Published

Opinion

Whitmyer, J.

On April 13, 1881, defendant owned a lot of land, sixty feet, front-and rear, and one hundred and fifty feet deep, upon which he then resided and now resides, on the northerly side of Grove street, in the city of Amsterdam, N. T. At that time, he also owned a lot thirty feet, front and rear, and one hundred feet deep, easterly of and adjoining the former, upon which there was then no building, and a lot in the rear of that, fifty feet northerly and southerly, and ninety feet, easterly and westerly, upon which was a greenhouse. On that day he conveyed the easterly lot and the greenhouse lot to plaintiff, a florist, with a right of way over his adjoining westerly lot, which, by the language of the deed, was “ to be used as located by said first party for the purpose of drawing in wood and coal and' to be used in common by parties hereto. ” Thereupon, defendant located a way, twelve feet wide, along the westerly side of his lot and around to a gate, twelve feet wide, opening into the greenhouse lot. Plaintiff, at some time thereafter, built a house on his lot, which covered the lot, with the exception of about four feet along the westerly side. When the way over defendant’s lot was located, plaintiff commenced to use it and he used it until the greenhouses were removed, about five years thereafter, for drawing in material for an addition to the greenhouses, heating apparatus, wood, coal, fertilizer, plants, shrubs and seeds, and for taking out plants and flowers. Since that time, plants, flowers and vegetables have been grown on the lot, by plaintiff’s son or by plaintiff’s tenants, who used the way to some extent, but not frequently. On August 12, 1912, plaintiff caused a load of wood to be drawn to the entrance, but he could not drive in, because the iron gates, which had been built across the way, in connection with an iron fence, were locked, and he had no key. Thereupon, he commenced this action to restrain defendant from obstructing the way and to obtain an adjudication as to his rights. The deed gave plaintiff a right of way to be used for the purpose of drawing in wood and coal and to be used in common by the parties. Under it, plaintiff has a right of way for the purposes stated and is entitled to the reasonable use and enjoyment thereof, and defendant may use the way for such purposes as he pleases, consistent with plaintiff’s right, hut cannot render the exercise of it by plaintiff unreasonably or unusually difficult or burdensome. Bakeman v. Talbot, 31 N. Y. 370; Herman v. Roberts, 119 id. 43; Blydenburgh v. Ely, 161 App. Div. 91. At first, a wooden fence extended along the front of defendant’s lot. It was removed some years before the commencement of the action. Until that time, a brick incline connected the roadway with the sidewalk at the entrance. That was the only one in front of the lot. Later, an iron fence was built in place of the wooden one. Plaintiff fixed the time in the year 1911, defendant in 1908. The brick incline was there until that was built. . Then a curb was put in and a wooden bridge, suspended from the curb, was used. Plaintiff said that the bridge was there about three months and was then removed to the easterly part of the defendant’s lot in front of a garage, which seems to have been built there. Swinging iron gates were built, in connection with the iron fence, across the entrance to the way. At first, these were not locked, but were opened and closed by means of a latch. At that time, a lock hung from them but was not locked. Later, the gates were securely locked by a padlock and kept so. Plaintiff did not discover this until July or August, 1912, but the testimony of defendant and of his daughter tends to show that the locking commenced about eighteen months before that. They say that it commenced on an occasion, when a load of rubbish and garbage was being taken from the rear, and that the daughter locked them at that time under instructions from her father. They have been kept locked ever since .that time and def endant has kept the key in his house. He said that he told plaintiff’s son where it was kept and that he would only have to ring the bell and ask for it, if he wanted it at any time. The son denied this and testified that def endant said.“ you can have a hey ” and that he replied that they conld not and would not accept one, because that would be going in by consent, when it was their right. A key was not furnished or tendered. Defendant claimed that trespassers, who used the way on foot, made this action necessary. But a cemetery watchman was the only person whom he could name. Defendant also claims that plaintiff has not been seriously injured, because he has practically abandoned the use of his right. While it is true that its use by him has not been as frequent since the greenhouses were removed as it was before, yet he has used it and he has not lost or given it up. Defendant could and can prevent its use for purposes other than those stated in the deed, hut locked gates are not necessary to accomplish that and constitute an unreasonable burden. In any event, plaintiff cannot be required to go into defendant’s residence to get a key or to carry a key, whenever he may desire to use his right. Blydenburgh v. Ely, supra. The damages are nominal. In his complaint, plaintiff asks for an adjudication that he is entitled, by his deed, to the free and uninterrupted use of the way, in common with the defendant, to take wood and coal to his premises. On the trial, he claimed that he has the exclusive right to draw wood and coal over it and a right, in common with defendant, for all other purposes. There is no claim of right by adverse user. A right cf way is limited in its use by the terms of the grant, from which the right is derived. If the grant is for a particular purpose, the way cannot be used for another purpose. Willard Real Estate, 195; Gerard Titles, 834; 2 Washb. Real Prop. 350; 14 Cyc. 1206, 1207; Wells v. Tolman, 156 N. Y. 636. And the extent of the right is to he determined, not by user, but by the terms of the grant, except when those are ambiguous, in which case the surrounding circumstances are to be considered in connection with the terms, for the purpose of determining the intention of the parties. Smith & Sons Carpet Co. v. Ball, 143 App. Div. 83. On the other hand, the owner of property, over which a right of way is granted, may use it in any way consistent with the enjoyment of the right. 14 Cyc. 1208; Tyler v. Cooper, 47 Hun, 94. The grant here is one of a right of way to he used for drawing in wood and coal and to be used in common by the parties. It is not a grant of a way to be used in common by the parties, since particular purposes are stated. And it is not an exclusive grant for those purposes, since there are no words of exclusion. It gives plaintiff a right to draw in wood and coal and then provides as to the use of the way in common. This provision, although preceded by the conjunction, is not an addition to the grant, but rather a limitation upon it or explanatory of it, indicating that plaintiff was not to have an exclusive right to draw in wood and coal, but that the parties were to have that right in common. And there is no limitation upon defendant, except that his right to draw in wood and coal is equal to that of plaintiff. In other respects, he may use the way in any manner, not inconsistent with plaintiff’s right. The language is clear and unambiguous.

Findings accordingly, with the further direction that plaintiff have costs to be taxed as in an action at law.

Judgment accordingly.