Easements to Property

Easements to Property

Here is the position of courts in regard to easements to property:

“An easement is a permanent right conferred by grant or prescription, authorizing one landowner to do or maintain something on the adjoining land of another, which, although a benefit to the land of the former and a burden on the land of the latter, is not inconsistent with general ownership.” Trustees of Freehold and Commonalty v. Jessup, 162 NY 122 (1900).

“One does not, however, possess or occupy an easement or any other incorporeal right. An easement derives from use, [rather than possession] and its owner gains merely ‘a limited use or enjoyment of the servient land’. [rather than title or ownership]” Di Leo v. Pecksto Holding Corp.,304 NY 505 (1952).

“Private easement of access arises in order to insure that a grantee or his successors in title are not deprived of the use of the right of way existing at the time title (to the lot) was acquired.” Kent v. Dutton,122 AD2d 558 (4thDept. 1986)

“Only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity.” Four S. Realty Co. v. Dynko,210 A.D.2d 622 (3d Dept 1994).

“The necessity must exist in fact and not as a mere convenience” and must be indispensable to the reasonable use for the adjacent property. Simone v. Heidelberg, 9 NY 3d 177 (2009)

“While courts in other jurisdictions have held that such an easement extends to all streets delineated on a subdivision map or plat (citations omitted), the prevailing and most current view in this State appears to be that a grantee acquires an easement by implication only over the street on which his property abuts, to the next intersecting streets, i.e., an easement of access.” De Rusciov. Jackson, 164 A.D.2d 684 (3d Dept 1991)


Unfortunately, a cause of action for negligence may not be possible. In Doerr v. Goldsmith, 25 N.Y.3d 1114, 1116, 35 N.E.3d 796, 797 (2015), the Court of Appeals considered negligence in an incident concerning a domestic pet, rejecting a negligence cause of action. Doerr concerned two instances where bicyclists were injured by dogs when (1) in the first case the dog ran into the bike path from the owner’s boyfriend to the owner who summoned the dog to her (while conforming with leash laws that allowed the dogs to be off the leash at those times) and (2) in the second case, two dogs ran outside onto their farm into the nearby street. The Court held that the dog owners were not liable under a theory of negligence since dogs are not subject to an owner’s duty to prevent them from wondering off the property, as is the case with farm animals, and the dog owners were not liable under strict liability because there was no showing of any vicious propensities by the dogs. The Court concluded that “[r]ecognizing strict liability as the only viable theory of recovery” the defendants had proven that they “lacked actual or constructive knowledge that the dog had a propensity to interfere with traffic”. Id at 1121.

Intentional Infliction of Emotional Distress

The tort has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress. The first element — outrageous conduct — serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff’s claim of severe emotional distress is genuine (see, Prosser, Insult and Outrage, 44 Cal L Rev, at 44-45; compareMitchell v Rochester Ry Co., 151 NY, at 110 (1986). 

Consequently, the “requirements of the rule are rigorous, and difficult to satisfy” (Prosser and Keeton, Torts § 12, at 60-61 [5th ed]; see alsoMurphy v. American Home Prods. Corp., 58 NY2d, at 303 (1983) [describing the standard as “strict”]). 

“`Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'” (Murphy, 58 NY2d, at 303, quoting Restatement [Second] of Torts § 46, comment d).

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