November 16, 1961
Present — Bergan, P.J., Coon, Gibson, Herlihy and Reynolds, JJ. [ 29 Misc.2d 24.]
Appeal from a judgment after trial without a jury, Supreme Court, Columbia County, awarding appellants an unobstructed right of way 12 feet in width over respondents' property. Both appellants' and respondents' property was owned by one Mildred Bergeron from May 27, 1933 to March 29, 1943. On March 29, Mildred Bergeron transferred to her husband Aime Bergeron: "All that certain lot of land with the buildings thereon, known as Nos. 10 and 12 North Fourth Street, located on the Easterly side of Fourth Street, in the City of Hudson, County of Columbia and State of New York, together with the right to use the land in the rear for ingress and egress to and from said properties, not, however, to interfere with the use of the said premises by the owner of the Plaza Hotel and No. 8 North Fourth Street." This parcel was conveyed by deed dated July 18, 1957 to appellants by one Aime Leonard, who derived his title by inheritance from Aime Bergeron. This conveyance has the same description as the March 29, 1943 instrument including the easement. On June 10, 1943 Mildred Bergeron transferred the remainder of her holdings in the plot including the property subject to the easement to respondents. In July of 1943 shortly after acquiring title to their property respondents built a garage on that portion of their property subject to the easement. Appellants contend that easement right in the deed of March 29, 1943 and reiterated in the instrument by which they acquired title gave them a right to use all of the property of respondents abutting on the rear of their premises and request implementary relief to compel respondents to remove any encroachments on the easement, i.e., the garage. Appellants urge that the term "use the land in the rear" specifically defined the land subject to the easement as all of the land and the right to "use the land" conveyed more than a right to travel over the land. What appellants appear to have overlooked is that the deed conveying the easement states "to use the land in the rear for ingress and egress to and from said properties" (emphasis supplied). Thus the scope of the use granted is specifically limited to ingress and egress. Once it is admitted that this is appellants' only right in the land it does not seem plausible that appellants need the use of the entire 20.5 feet by 43 feet area to effect ingress and egress, unless extenuating circumstances are presented which do not appear here. The law as ably pointed out by the court below is clear that where the physical extent to the right of way is not specifically defined the reservation must be construed as referring to such right of way as is necessary for the purpose for which it was created ( Grafton v. Moir, 130 N.Y. 465, 471). The allowance by the court below of an unobstructed 12-foot right of way beginning at Prison Alley and running the easterly length of appellants' premises, which is apparently acquiesced in by respondents, would appear more than adequate to afford appellants their necessary access. Should respondents obstruct such right of way appellants may then seek appropriate relief. We do not consider appellants' allegation that they have acquired a prescriptive easement to any additional portion of the disputed property since the record reveals no motion to conform the pleadings to the facts proved. It is well settled that a new cause of action cannot be introduced for the first time on appeal. ( Reeder v. Sayre, 70 N.Y. 180, 190; Harris v. Tumbridge, 83 N.Y. 92, 97.) Judgment unanimously affirmed, with costs to respondents.