Watson v. Heger

HANSON, J.

pro

tem.

The main question presented by this appeal of plaintiff is whether an easement of ingress and egress, created by reservation in a grant deed, has been abandoned by acts of the present owner of the dominant tenement; and if not, whether the present owner of the servient tenement is entitled (3) to a permanent injunction restraining any trespass upon her property beyond the strict limits of the easement, and (2) to the costs of the suil below against the owner of the dominant tenement. In the court below judgment on all these questions went against the plaintiff, the owner of the servient tenement. The appeal is on the judgment roll alone.

As the two tenements and the easement are described in the various deeds involved by metes and bounds, we think

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it will simplify the discussion to set forth a diagram of the properties, with such labels thereon as are requisite to an understanding of it.

The diagram above set forth represents what is known as Lot 4. In 1924 the then owner of Lot 4 conveyed to the husband of plaintiff (to which interest she has succeeded) approximately the southerly half of Lot 4, i. e., parcels D, E, F and G-, reserving, however, an easement or right of Avay over parcel E for ingress to and egress from the northerly half of the lot, i. e., parcels A, B and C, to Lexington Avenue, with joint user of such parcel by the owners of the dominant and the servient tenement, without let or hindrance on the part of either. As the property surrounding Lot 4 on three sides was privately owned, such easement was necessary as a means of vehicular ingress and egress to and from parcels

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B and C, as a brick building had been erected covering all of parcel A, which fronted its full width on Lexington Avenue. Plaintiff’s husband in the year 1931 built a store building covering parcel D, and also a garage, with an upstairs apartment, covering parcel G. The defendant Anita Heger and her husband, as joint tenants, acquired the dominant tenement, parcels A, B and C, along with the right to the use of the easement, parcel E, for purposes of ingress and egress. In 1931 the joint tenants mentioned concluded to extend the store building located on parcel A—flush with its sides—so as to cover all of parcel B. As they planned there should be no break in the store wall immediately at the northerly end of the easement, parcel E, they sought and obtained from the husband of plaintiff a parol license to pass over parcel