Opinion
May 28, 1937.
The action is to establish the existence of an easement by implied grant on the defendant's property for the purpose of drainage and to restrain defendant from interfering with the easement, and for damages. The court granted judgment for plaintiff and awarded him $150 as treble damages. On appeal by defendant, judgment reversed on the law, without costs, and complaint dismissed, with costs. Appeal by plaintiff from the judgment dismissed. Plaintiff's and defendant's predecessors in title took from a common grantor in April, 1865. There is no proof that the use which gives rise to the easement existed prior to the severance of the unity of ownership. To create an easement by implication on the ground of necessity, the necessity must exist in fact and not as a mere convenience. The proof in the instant case shows the easement is not necessary for the beneficial enjoyment of plaintiff's property and that the drainage from plaintiff's roof may be accomplished by the expenditure of a nominal sum. ( Wells v. Garbutt, 132 N.Y. 430; Paine v. Chandler, 134 id. 385; Spencer v. Kilmer, 151 id. 390; Heyman v. Biggs, 223 id. 118.) Hagarty, Davis, Johnston, Adel and Close, JJ., concur.