Makransky v. Miller

In a consolidated action, inter alia, to enjoin appellants-respondents Miller from interfering with the mooring of boats, the parties cross-appeal from stated portions of a judgment of the Supreme Court, Suffolk county, entered March 15, 1977, after a nonjury trial, which, inter alia, fixed the rights of the parties in the area in question. Judgment modified, on the law, by deleting from the second decretal paragraph thereof the words following the words "south of said dock”. As so modified, judgment affirmed insofar as appealed from, without costs or disbursements. The record clearly establishes that respondents-appellants had an implied easement to moor their boats on the south as well as the north side of the dock in question, since that use was an existing one at the time of the severance of ownership and was necessary for the reasonable use of the upland property conveyed to them (see 17 NY Jur, Easements and Licenses, §62). Nevertheless, as held by the trial court, due consideration of appellants-respondents’ riparian rights as owners of the bulkhead adjacent to the south side of the dock requires that respondents-appellants should not use the first 20 feet thereof, as measured from the bulkhead. The relief afforded by the trial court of an easement to respondents-appellants to enter upon appellants-respondents’ land for repair of the dock was unnecessary and unwarranted (but see Real Property Actions and Proceedings Law, § 881). Damiani, J. P., Shapiro, Mollen and O’Connor, JJ., concur.