p. 213Harriet M. Palmer, App’lt, v. John M. Palmer, Resp’t.(Supreme Court, General Term, Second Department,Headnote
Easement—Right oe way to burial ground.The father of the parties was the owner of a farm, in the rear of which there was a family burial plot. After his death the sons conveyed a piece of land adjoining the burial plot to plaintiff for' a burial place, and she conveyed lier share of the farm to them, neither of the deeds reserving or giving a right of way to the lot. There was another burial p'ace adjoining which fronted on a public lane which had been used to approach the family lot, which cornered thereon, for many years. A fence was built around the three pieces and steps made leading from the family lot to the lane, and defendant enlarged the lane so as-to give access for burials, and no objection was made to passage over the other plot. Held, that if a right of way of necessity ever existed over the farm, it was extinguished by the creation of a more convenient way of access through the lane. k
Appeal from judgment in favor of defendant, entered upon decision by the court.
-Action in equity to establish that plaintiff has a right of way from the public street across the farm of defendant over a specified course to a private burial ground in the rear, and to restrain defendant from interfering with her in the exercise of such right.
Isaac N. Mills, for app’lt; Wm. A. Woodworth, for resp't.
John Palmer, a resident of Mamaroneck, in Westchester county, owned a farm in Wicorn 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
p. 214plot 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 b}r the creation of another and more convenient way of access to the lot? This is a question of fact under the evidence presented which involves 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 oE 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 and 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 owners built a fence around the whole plot made up of the three burial grounds and made steps from the Palmer enclosure 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 lot 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 can 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 de
p. 215A i iiif one existed.
Holmes v. Goring, 2 Bing., 76;
Holmes V. Seely, 19 Wend., 507 .v; judgincut should be affirmed, with costs.
Pratt, J., concurs ; Dykmah, J., not sitting.