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Home > Underwriting > Title News > Sixteen Volume Eleven

SERIES: Sixteen VOLUME: Eleven DATED: November, 2001


Generally, an incident of ownership of a lot shown on a filed subdivision map is that the grantee has the right to use the adjacent streets shown on the subdivision map as an appurtenant

 easement of access to and from the grantee's lot whether or not that easement is specifically stated in the deed to the grantee. This street easement extends only to the next cross street on the map located on each side of the lot and also over all other streets on the filed map which are necessary to give access to a public highway.

A recently decided Appellate Division case, Palma v. Mastroianni (Appellate Division Third Department, decided October 19, 2001) reviewed the case law applicable to "paper streets" and denied a lot owner access to a paper street abutting his property as shown on a filed subdivision map.

The parties in the Palma case were owners of adjacent parcels of real property located in the Town of Glenville, Schenectady County. The plaintiff, Palma owns three contiguous lots designated as Lots 1, 2 and 3 on a map filed with the Schenectady County Clerk on September 30, 1926 by Katharine Galbraith. The southerly border of each of the plaintiff's lots abuts a paper street identified on the 1926 map as "Corry Street" and only Lot 1 abuts a public roadway. The plaintiff, Palma has owned these lots since 1970 and his deed specifically references the 1926 map. In 1993, the defendants, Mastroianni acquired title to Lot 4 and Corry Street. The southern border of Corry Street, which has never been deeded to or recognized by the Town of Glenville as a town road, abuts the north boundary line of Lot 4.

After Mastroianni denied Palma access to his property over Corry Street in August 1997, Palma commenced this litigation seeking a declaration that he has an implied easement over Corry Street as a paper street or, alternatively, that he had acquired a prescriptive easement (by adverse use) over Corry Street. The lower court denied both of Palma's easement requests and dismissed Palma's complaint.

On appeal, the Appellate Court upheld the lower court decision with the following reasoning:

"We agree with the Supreme Court's resolution of the issues and affirm its judgment. Plaintiff claims that, by virtue of the existence and filing of the 1926 map depicting the division of a portion of Galbraith's property into 18 individual lots, an implied easement by grant was created in Corry Street. Whether an easement by implication has been created ultimately depends on the intentions of the grantor at the time of the original conveyance ... and the best indicators of those intentions are the appearance of the subdivision map in the language of the original deed ...

As specifically noted by this Court, the creation of an easement by implication 'requires proof that the deed from the original subdividing grantor referred to the subdivision map or the abutting paper street' ...

Here, while the 1926 map depicts plaintiff's parcels as abutting Corry Street, it is undisputed that the deed originating from Galbraith to the grantee realty corporation [Palma's predecessor in title] - which was filed approximately 8 weeks after the filing of the map - does not contain a reference to any subdivision of the property, to the 18 individual lots, to Corry Street or, most importantly, to the 1926 map itself ... rather, the deed conveys a 13.58 - acre tract of land described in terms of metes and bounds. Plaintiff claims that the lack of any reference in the original deed to the 1926 map is not dispositive but rather 'left open a factual question as to [Galbraith's] intention'. To be sure, Supreme Court was required to resolve that factual issue and the burden was on Plaintiff to establish 'all the facts necessary to support' an implied easement... There being no other evidence in the record of any intention by Galbraith to establish an implied easement in Corry Street at the time she deeded the property, plaintiff failed to sustain that burden ...

We likewise find support for Supreme Court's finding that plaintiff failed to establish by clear and convincing evidence that he acquired a prescriptive easement over Corry Street, particularly given the testimony of plaintiff and his son that access to plaintiff's lots over the years was via a gravel driveway on defendant's property (not Corry Street) which was used with the express permission of defendant's predecessors. In addition, there is sparse evidence that any actual use of Corry Street itself was continuous and uninterrupted for the 10 years needed to establish such an easement ...

ORDERED that the judgment is affirmed with costs."

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