
    John Tarolli, Respondent, v. Westvale Genesee, Inc., et al., Appellants.
    Argued April 7, 1959;
    decided May 21, 1959.
    
      
      George H. Bond for appellants.
    I. By reason of the descriptions in the deeds to plaintiff, defendants, and other abutting land owners, defendants, as a matter of law, acquired an easement or right of way over the road. (Collins v. Barker, 286 App. Div. 349; Ranscht v. Wright, 9 App. Div. 108, 162 N. Y. 632; Matter of Opening Eleventh Ave., 81 N. Y. 436; Kenyon v. Hookway, 17 Misc. 452, 21 App. Div. 342; Lewisohn v. Lansing Co., 119 App. Div. 393.) II. As a matter of law, the intent of the parties was to grant an easement to Westvale Genesee, Inc. (Mencher v. Weiss, 306 N. Y. 1; Hotchkiss v. National City Bank of N. Y., 200 F. 287.)
    
      Daniel F. Mathews for respondent.
    I. There was nothing-informal about this sale. II. A covenant is not implied in a conveyance of real property whether the conveyance contains any special covenant or not. (Chisholm v. Muller, 234 App. Div. 102; Trowbridge v. Ehrich, 191 N. Y. 361; Matter of City of New York, 209 N. Y. 344; Ansorge v. Belfer, 248 N. Y. 145; Monogram Development Co. v. Natben Constr. Co., 253 N. Y. 320; Stirnweis v. Cacioppo, 258 N. Y. 68; Kehres v. City of New York, 162 App. Div. 349; Brzozowski v. Boutinger, 181 Misc. 379; O’Leary v. City of Glens Falls, 128 App. Div. 683, 200 N. Y. 218.) III. There was no intention to convey any right or property beyond the property described in the contract or deed. IV. There was never any intention to grant a right of way to defendants over the private road. (Ansorge v. Belfer, 248 N. Y. 145; Lido Colony Assn. v. Shelbourne-Grand Hotel Co., 284 App. Div. 1058.) V. The road herein was never used for public purposes and no public easement was ever acquired by the Village of Solvay or others. (Matteson v. Johnston, 139 App. Div. 859; Lynbrook v. Frey, 217 App. Div. 164; Speir v. Town of New Utrecht, 121 N. Y. 420; Johnson v. City of Niagara Falls, 230 N. Y. 77.)
   Desmond, J.

A summary of the proof in this case is to be found in the dissenting opinion at the Appellate Division (6 A D 2d 848) and need not be repeated here. There was strong evidentiary support for the affirmed finding of fact that the parties in the 1954 transaction did not intend that the vendees should acquire thereby a right of way easement as to the private road or lane in dispute. We, therefore, deal with the assertion of those vendees that as matter of law such an easement was implied. The principal reliance of appellants is on the description of the westerly boundary as running “ along the east boundary ” of the private road. There was, however, no mention of an easement. We hold that this language of description did not require the implication of such an easement.

One who claims an implied easement has the burden of establishing all the facts necessary to support it (Real Property Law, § 251; Zeiger v. Interborough R. T. Co., 254 App. Div. 908, affd. 280 N. Y. 516; Root v. Conkling, 199 App. Div. 90, 93). We do not have here the situation of a grantor subdividing his property and selling lots bounding on a street shown on his subdivision map (Wiggins v. McCleary, 49 N. Y. 346; Matter of Opening of Eleventh Ave., 81 N. Y. 436; Matter of Opening of St. Nicholas Terrace, 143 N. Y. 621). Nor is this a case where a private right of way has been in use for many years and the surrounding circumstances show that it must have been the intent of the parties to give the grantee continued use of the passageway (Ranscht v. Wright, 9 App. Div. 108, affd. 162 N. Y. 632). Merely bounding premises by a road (for purposes of description like using any other mark or monument) “ is very different from selling by reference to a map or plat on which the grantor has laid out streets ” (King v. Mayor of City of New York, 102 N. Y. 171, 175). The controlling authorities say that the claim of an easement solely by implication usually raises a question of intent to be determined in the light of all the circumstances, and that running a boundary along a road is one such circumstance only (Matter of City of New York [Northern Blvd.], 258 N. Y. 136,147, 148, 149; Erit v. Sea Gate Assn., 259 N. Y. 466, 470; Matter of City of New York [Harrison Ave.], 267 N. Y. 64, 78).

We affirm on the ground that the judgment below is soundly based on the finding of fact that there was in this instance no intent to grant an easement.

The judgment should he affirmed, with costs.

Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment affirmed.  