would not "force a party to take title where doubtful questions of law and fact exist concerning it, and all the parties who have a right to be heard upon that question are not before the court." Id., 98 N.Y.S. at 391.
In this case, defendants removed the conveyor structure in order to install the cooling towers. The suspension of adverse use for a period of months, after decades of continuous adverse use, does not operate to restore the full easement to plaintiffs. See Lewis, 162 N.Y. at 228 (removal of one railroad structure, followed immediately by the erection of another, did not revive the portion of the easement extinguished by adverse use).
Plaintiffs correctly point out that the Postal Service's adverse use of part of the courtyard does not entirely extinguish the Graybar Building's light and air easement. In Lattimer v. Livermore, the court considered whether a nine-foot extension of a house extinguished an expansive easement "for light, air and vision" created by grant. 72 N.Y. 174, 182 (1878). The Lattimer court reasoned that the easement owner had not lost the entire easement because the "fact that she chose to give up part of her easement, did not authorize the owners off the [adjoining] lots to deprive her of the whole." Id. at 183. Instead, the court held that the earlier house extension had "extinguished a portion of the plaintiff's easement" and modified the judgment to allow the defendant to extend his own house "to the same extent and height" as the earlier obstruction. Id. at 183-84.
Similarly, in Lewis, the court reasoned that although the plaintiff could "claim no damages on account of any new structure erected in the same place, within the same lines, and for the same purpose, which inflicted no more injury upon her property than the old," the defendants "could make no further encroachment without liability." 162 N.Y. at 224-25. Although the cooling towers do not serve the same purpose as the conveyor structure and are within slightly different lines, they are sufficiently similar in volume and location, and obstruct light and air to a lesser degree than the previous structure. Thus, plaintiffs' easement has been diminished by adverse use to the extent of the previous structure but it has not been entirely extinguished. Plaintiffs retain the balance of the easement and the judgment in this case does not entitle defendants to encroach further.
A party seeking a permanent injunction must demonstrate the absence of an adequate remedy at law and irreparable harm if such relief is not granted. Rondeau v. Mosinee Paper Corp., 422 U.S. 49, 57, 45 L. Ed. 2d 12, 95 S. Ct. 2069 (1975); New York State Nat'l Org. for Women v. Terry, 886 F.2d 1339, 1362 (2d Cir. 1989). To establish irreparable harm, plaintiffs must demonstrate an injury that is actual and imminent rather than remote or speculative. Tucker Anthony Realty Corp. v. Schlesinger, 888 F.2d 969, 975 (2d Cir. 1989). Plaintiffs' claim that the cooling towers will emit vapor which will impair the easement beyond the physical a presence of the towers is, at present, too speculative to support a finding of irreparable harm.
Because I have concluded that defendants' installation of the cooling towers does not violate plaintiffs' remaining easement, I do not reach the issue of whether plaintiffs' substantial delay in objecting to the presence of the cooling towers has caused prejudice sufficient to constitute laches which would bar injunctive relief.
The foregoing shall constitute my findings of fact and conclusions of law pursuant to Fed. R. Civ. P. 52, and my reasons for denying an injunction.
Dated: New York, New York
April 3, 1992
MIRIAM GOLDMAN CEDARBAUM
United States District Judge