
    Magdalena Fronckowiak and Others, Appellants, v. John Platek and Scholastyka Platek, Respondents.
    Fourth Department,
    July 9, 1912.
    Real property — easement — acquisition by adverse user.
    A husband and wife purchased a lot and erected a building thereon. Later the husband acquired title to an adjacent lot, inclosed them both with a fence and thereafter used and occupied them as one tract. Shortly after the second purchase the husband made an addition to his building extending it over the second lot about seven feet, the entire side of the building. Connected with this addition were other outhouses. These buildings covering the two lots were all used together and occupied continuously by the owners for nearly thirty years when they passed to the plaintiffs by will. The husband after his second purchase bought a third lot south of the second lot which he used independently of the two first lots. The second and third lots were purchased at a partition sale by the defendant, who had lived on an adjoining lot for several years. The plaintiffs brought suit, demanding a judgment barring the defendant of all right and possession to the second lot.
    
      Held, that the long occupancy of the second lot in connection with the first, openly, notoriously and continuously, ripened by adverse user into a definite easement; that the presumption of a grant is conclusive therefrom, and that a judgment in favor of the defendant should be reversed . and a new trial granted.
    Foote, J., dissented.
    Appeal by the plaintiffs, Magdalena Fronckowiak and others, from a judgment of the Supreme Court, entered in the office of the clerk of the county of Erie on the 1st day of April, 1912, upon the decision of the court rendered after a trial at the Erie Special Term.
    The judgment adjudged that the defendants are the owners of certain premises, and that the plaintiffs are barred from all claims in said lands.
    
      John T. Ryan, for the appellants.
    
      George E. Pierce, for the respondents.
   Spring, J.:

On the 29th day of July, 1881, Bartholomew Karalus and Katarzyna, his wife, who had intermarried in 1866, 'purchased a lot at the southwest corner of Peckham and Wilson streets in the city of Buffalo, with a frontage on the former street of twenty-five feet, and extending southerly along the westerly side of Wilson street one hundred feet. They erected a building facing Wilson' street on the southerly side of this lot, which they used ás a saloon, grocery and dwelling house. In August, 1881, Bartholomew Karalus acquired title to a lot immediately adjacent on the south of the first purchase, with a frontage on Wilson street of twenty feet and extending west fifty-three feet. These two lots were inclosed with a fence and thereafter used and occupied as one tract. Shortly after this last purchase Karalus erected an addition to the building extending it to the south over the second lot about ■seven feet the entire side of the building. Connected with this addition were a shed, outhouses and a large woodshed. These buildings were all used together and occupied continuously by these people until the death of the husband, intestate and without descendants, in 1906, and thereafter the wife continued the possession until her death in March, 1910. She left no descendants. She executed a will and devised her property to the plaintiffs, which will was duly admitted to probate.

Upon the death of Mrs. Karalus an action of partition was commenced by one of the heirs at law of Bartholomew Karalus against the other heirs. Karalus in 1882 had purchased another lot south of the second parcel mentioned, with a frontage on Wilson street, which parcel had been used by him independently of the two tracts first purchased. The two southerly tracts were sold in pursuance of the judgment in partition, and purchased by the defendants, who for more than thirty years had lived on the lot adjoining these premises. This action was commenced by the plaintiffs, demanding judgment barring the defendants of all right and possession to said parcel 2 bought by them on the partition sale. An amended answer was served setting up the defendants’ title acquired in the partition action, and a reply was thereupon served, alleging an easement in the plaintiffs by reason of the fact of the long user by Bartholomew Karalus and his wife in parcel 2 as appurtenant to the first parcel.

During the possession of the Karaluses from 1883, the second ■ tract was assessed separately, except for two years; and to Bartholomew and his wife only in 1901 and 1902 the assessment appears on the roll to him.

The plaintiffs as the devisees of Katarzyna Karalus claim that they are entitled to an easement in the second parcel, at least to the extent of the buildings which formed the common property of the husband and wife, and which are inseparably connected, and all had been used together continuously and notoriously for nearly thirty years prior to the commencement of the action.

We must start with the assumption that both Bartholomew and Katarzyna knew that upon the death of one the survivor would be vested with the absolute title to the first lot acquired, and that the wife had no title to the second tract. With that knowledge Bartholomew of his own motion participated in building these additions upon his own land, and to their continued occupation as a part of the homestead property. He thus assented to making that lot, so far as appropriated, servient to the main and more important tract. He was parting with an interest in his premises, realizing that it inured to the benefit of the larger piece and might in time become so attached as to be permanently affixed to it and to the advantage of his wife, if she outlived him.

I think the long occupancy in connection with the first lot, openly, notoriously and continuously, ripened by adverse user into a definite easement, and that the presumption of a grant is conclusive therefrom. (Colburn v. Marsh, 68 Hun, 269; affd. on opinion below, 144 N. Y. 657; Hey v. Collman, 78 App. Div. 584; affd., 180 N. Y. 560; Fritz v. Tompkins, 168 id. 524.)

The rule is stated in this language in Winne v. Winne (95 App. Div. 48; affd., 184 N. Y. 584) at page 50: “Where the owner of the land has, by any artificial arrangement, effected an advantage for one portion, to the burdening of the other, upon the severance of the ownership the holders of the two portions take them respectively charged with the servitude and entitled to the benefit openly and visibly attached at the time of the conveyance.”

The wife equally with the husband contributed to the cost of erecting these additions. With him she paid the taxes on this twenty-foot strip. They were acting for the mutual benefit of the two lots. She was willing to contribute to the building and maintenance of these additions, and he was willing that they should, be appurtenant to the main premises. If the sitm ation were presented between the husband and- the wife, he would at this late day be estopped to repudiate his affirmative acts in affixing these buildings to the store and dwelling on the lot they owned as tenants by the entirety. The defendants are in no better situation than would Bartholomew Karalus be. Platek lived in an -adjoining lot and knew the buildings were used altogether. He sáw them when he purchased and took his chances on the validity of his title. •

The part of the building, for the various additions ‘ are so attached as to constitute one building, cannot now be severed without materially diminishing the value of the first tract purchased. Bartholomew Karalus understood that when he built the additions. He did not expect that they would be torn apart. The substantial character of the part -added, its necessity for the beneficial use of the first property purchased and the manner in which it was joined to the first building denote that these two people intended that the entire building should remain as erected as an appurtenant to the first lot:

The judgment should be reversed.

All concurred, except Foote, J., who dissented.

Judgment reversed and. new trial granted, with costs to appellants to abide event, upon questions of law and facts.  