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Palmer v. Palmer

24 N.Y.S. 613 Court N.Y. Gen. Term Decision date 1893-07-28 English

Delivered by BARNARD, P. J.

Contents

Majority

p. 613
PALMER v. PALMER.
(Supreme Court, General Term, Second Department.
July 28, 1893.)

Headnote

1. Easements—Way of Necessity.
Out of the rear of a farm, in which plaintiff and defendant had interests by inheritance from their father, a burial plot was conveyed to plaintiff.
p. 614
On the same day, plaintiff and the other heirs conveyed their interests in the farm to defendant. Neither deed provided for any right of way over the farm to the plot. This plot lay to the side of a burial ground which faced on a public lane, and to the rear of a burial plot which had been conveyed to defendant and his brothers by their father, and which cornered on the lane. The three burial grounds were inclosed by one fence. Steps led from the lane to the plot of defendant and his brothers, over land of defendant, and plaintiff’s plot could be reached over either of the others. SeU, that plaintiff had no way of necessity across defendant's farm to her burial plot.
2. Same—Extinguishment.
If there was any such way of necessity, it was extinguished when defendant made the land over which the steps passed a part of the lane, thereby enabling one to go onto the plot of defendant and his brothers, and thence onto plaintiff’s, without passing over private property of defendant.
Appeal from special term, Westchester county.
Action by Harriet M. Palmer against John W. Palmer to establish a right of way in plaintiff over defendant’s farm, and to enjoin defendant from interfering with her in the exercise of that right. Judgment for defendant. Plaintiff appeals.
Affirmed.
Argued before BARNARD, P. J., and PRATT, J.
Isaac N. Mills, for appellant.
William A. Woodworth, for respondent.

John Palmer, a resident of Mamaroneck, in Westchester county, owned a farm on Weaver street,—a public highway. There was in the rear of this farm a private family burying ground. Palmer died in 1872, leaving five children. Before his death he conveyed the then family burying ground to his three sons. The three sons, in 1874, conveyed to the plaintiff and her sister a small piece of land adjoining this family burial plot, to be a burial place for them and their heirs. Susan A. Dean, one of the sisters, conveyed this small plot to the plaintiff in 1876. There was no right of way reserved in the deed from the brothers to the two sisters, or in that from Mrs. Dean to the plaintiff. The questions presented are: Was there ever a way of necessity? Or, if there was, has it been extinguished by the creation of another and more convenient way of access to the lot? These are questions of fact, under the evidence presented, which involve an examination of the circumstances shown to have existed when the conveyance was made to the plaintiff and her sister. There was a very old burial ground, called the “Bloomer & Haight Burial Ground.” On the west of this there was an old family plot of the Palmer family, with a path between the two plots, running north and south. The plot conveyed to the plaintiff was north of the Palmer plot, and was at the end of this path; the two Palmer plots making, with the Bloomer plot, a substantially rectangular plot of land. The Bloomer & Haight plot fronted on an old lane, which had been used as a means of approach to that lot for nearly a hundred years, (the Palmer plot.) The Palmer plot reached the old lane at its corner, only; but in 1872 the owner built a fence around the whole plot

p. 615
made up of the three burial grounds, and made steps from the Palmer inclosure to the lane. In 1874 the plaintiff acquired her title to the plot in question, and on the same day she conveyed her interest in the defendant’s farm, and neither deed reserved or gave any right of way to the plot. Under this state of these existing facts, there was no right of way of necessity resulting to plaintiff and her sister. It was intended that the burials should be made in the plot through the lane over the stone steps, or through the Bloomer & Haight lots direct from the lane. This lane is public. It is idle to doubt the fact. It has been open and used for nearly a century to go to a public burial ground. The right of way over the Bloomer piece is not disputed by any one. The plaintiff has a right in the Palmer plot, and must approach the land in question through it, there being no connection with the defendant’s land otherwise. There are no grounds upon which a right of way of necessity can be based. The land cap be reached through and by a public highway, and the piece of land was bought and sold with that local understanding. The deed of the defendant’s plot was conveyed with a right of way to it through the lane, and this small piece of plaintiff’s was but an addition to this plot, in respect to burials. The way of necessity is extinguished. Some five or six years ago the defendant threw a portion of his land into the lane opposite the south end of the Palmer lot, which enabled persons to pass to the Palmer lot without going over private property of defendant. The widening of the lane gave access sufficient for burial purposes, but without width for wagons to pass. The burials have always been made in the old burial ground by steps from the lane. When the lane was widened so as to permit access direct from the lane to the Palmer lot, the way was shorter to defendant’s lot, and more convenient. This extinguished a right of access over defendant’s farm, if one existed. Holmes v. Goring, 2 Bing. 76; Holmes v. Seely, 19 Wend. 507 . The judgment should be affirmed, with costs.

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