April 1, 1996
Appeal from the Supreme Court, Putnam County (Hickman, J.).
Ordered that the order is modified, on the law, by remitting the matter to the Supreme Court, Putnam County, for the entry of a judgment declaring that the plaintiff is not the owner of an easement located on the defendant's property; as so modified, the order is affirmed, with costs to the defendant.
Once an appurtenant easement is created, it can only be extinguished by abandonment, conveyance, condemnation, or adverse possession ( see, Gerbig v. Zumpano, 7 N.Y.2d 327, 330; see also, Strnad v. Brudnicki, 200 A.D.2d 735). To extinguish an easement by abandonment, there must be unequivocal conduct on the part of the owner of the easement definitely evincing an intention to abandon ( see, Permanent Mission of Islamic Republic of Iran v. 1030 Fifth Ave. Corp., 833 F. Supp. 318, 322, affd 23 F.3d 397; see also, Gerbig v. Zumpano, supra).
In the present case, the defendant, the owner of a parcel of real property burdened by an easement which was created in 1909, offered sufficient evidence to establish that the plaintiff had abandoned its intention to use the easement for the limited purpose for which it had been created ( see, Snell v. Levitt, 110 N.Y. 595; see also, Wilson v. Ford, 148 App. Div. 307, 314-315; Norris v. Hoffman, 133 App. Div. 596, affd 197 N.Y. 578). The original easement agreement provided that the easement would be used for private purposes and only for the benefit of the residences on the dominant estate land. The agreement specifically excluded any uses for public, commercial, manufacturing, or business purposes. The plaintiff changed the nature of the dominant estate by making the property a public park, and indicated that it intended to use the easement for construction, maintenance, and emergency access for the park grounds. Furthermore, it was undisputed that the easement had not been used by the plaintiff's predecessors for at least 30 years. While non-use alone does not create abandonment, regardless of how long it continues ( see, Consolidated Rail Corp. v. MASP Equip. Corp., 67 N.Y.2d 35, 39), the non-use of the easement in this case, coupled with the other clear indications that the plaintiff did not intend to use the easement for the limited purpose for which it was created, demonstrate the plaintiff's unequivocal intention to abandon the easement as it had once existed and to expand the use of the easement area beyond the permissible scope of the original easement grant.
The plaintiff's remaining contentions are without merit.
We note that since this is a declaratory judgment action, the Supreme Court should have directed the entry of a declaration in favor of the defendant rather than dismissal of the complaint ( see, Lanza v. Wagner, 11 N.Y.2d 317, 334, appeal dismissed 371 U.S. 74, cert denied 371 U.S. 901). Thompson, J.P., Joy, Krausman and McGinity, JJ., concur.