practical skills— easement law in new york
TRANSCRIPT
Practical Skills— Easement Law in New York
9:00 a.m. – 12:15 p.m.
(W) May 14, 2014 Long Island (Melville)
(W) May 21, 2014
New York City
(W) May 28, 2014 Albany
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AGENDA
8:30 – 9:00 a.m. REGISTRATION
PART ONE
9:00 – 10:30
1. INTRODUCTION
2. TYPES OF EASEMENTS
3. CREATION AND EXISTENCE OF EASEMENTS
10:30 – 10:45 BREAK
PART TWO
10:45 – 12:15 p.m.
4. INTRODUCTION
5. USE OF EASEMENTS
6. INTERFERENCE WITH EASEMENTS
7. TRANSFER OF EASEMENTS
8. EXTINGUISHMENT OF EASEMENTS
12:15 p.m. ADJOURNMENT
ABOUT THE SPEAKER Laura E. Ayers, Esq. is a solo practitioner admitted to the New York State Bar and the United States District Court for the Northern District of New York. Prior to establishing her current practice, Ms. Ayers was a partner in a law firm located in Montgomery County. The Law Office of Laura E. Ayers, Esq. focuses almost exclusively on real property matters in many areas of the law including civil litigation, appellate law, highway law, environmental law, municipal law, land use, and zoning and planning. Her practice is located in the Historic Village of Schoharie, a short distance from the Capital District, Mohawk Valley, Catskill Mountains, Southern Tier and Adirondack Park. Ms. Ayers has handled property cases in 26 of the 62 counties of the State of New York. She is an active member of the New York State Bar Association – Environmental Law section and Real Property section. She is also a member of the Schoharie County Bar Association and Chamber of Commerce. Ms. Ayers received her Bachelor of Science degree in 1997 from Rensselaer Polytechnic Institute (RPI). She is a graduate of Albany Law School of Union University.
TABLE OF CONTENTS Easement Law in New York PPT Presentation ........................................................... 001 Easement Law in New York Outline .......................................................................... 091 by Laura E. Ayers, Esq. Lined Paper for NoteTaking 1. INTRODUCTION .......................................................................................................... 133 2. TYPES OF EASEMENTS ................................................................................................ 139 3. CREATION AND EXISTENCE OF EASEMENTS ............................................................... 145 4. INTRODUCTION .......................................................................................................... 151 5. USE OF EASEMENTS ................................................................................................... 157 6. INTERFERENCE WITH EASEMENTS ............................................................................. 163 7. TRANSFER OF EASEMENTS ......................................................................................... 169 8. EXTINGUISHMENT OF EASEMENTS ............................................................................ 175
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Laura E. Ayers, Esq.
The Law Office of Laura E. Ayers, Esq.
P.O. Box 237, 434 Main Street
Schoharie, NY 12157
(518) 456‐6705
www.lauraayerslaw.com
Definition of EASEMENT: Interest in Real Property
Must be in writing: General Obligations Law 5‐703
Must be recorded: Real Property Law §291
Comprised of 2 Tenements: one Dominant and
one Servient
They can be Public or Private, Express or Implied
They are a property right less than fee ownership
they permit an individual to do “something” upon someone else’s property
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License not an interest in real property,
personal to the holder, not assignable and are of limited duration nothing more than an excuse for the act, which would otherwise be a trespass
Franchises are licenses
Covenants:
An agreement or promise to do or not to do something
They can be personal or can run with the land
Negative Easements: Another term for Restrictive Covenants
They restrain landowners from making otherwise lawful uses of their property
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Covenants con’t
Enforceable between: Grantor and Grantee
Grantee and Grantee (where there are mutual covenants)
Adjoining land owners who have mutual reciprocal covenants
Covenant Examples: (private zoning) Limiting further subdivision
Limiting division
Setting Minimum lot sizes
Limiting future uses Residential only
No saloons/junkyards other unsavory uses
No mobile homes
No blocking the view
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Lateral Support
Air Space or Air Rights
Mineral Estate or Mineral Rights
Riparian Rights
Littoral Rights
Gas and Oil Leases:
NY General Construction Law §39. Property, personal
…Oil wells and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation.
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Profits:
the right to take a product from the land
A profit may also constitute an appurtenant easement where there is a dominant and servientestate.
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Public
Acquired for the benefit of the public
Private
Acquired for the benefit of private land owners
Express Some writing evinces the existence of the easement
Implied Implied easements are inferred from the circumstances
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Appurtenant A benefit attached to the property
Inseparable from the land and a grant of the land carries with it the grant of the easement
Will v. Gates, 89 NY2d 778 (1997)
“run with the land”
Easements in Gross: are licenses,
personal,
non‐assignable,
non‐inheritable,
expire upon the death of the holder,
sometimes called “Personal Easements”.
There is no dominant estate, the “dominant estate” is a person
Stranger to the Deed Rule Often see a personal right conveyed to a third party in a deed between A and B.
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Tuscarora Club of Millbrook v. Brown, 215 N.Y. 543 (1915)
Deed: Sarah Brown to Margaret Carroll
“Reserving the right to William H. Brown., Jr. to fish in the said Mill Brook Stream.”
Right of Way (ROW)
an easement that grants the right to pass over the surface of the land of another for a particular purpose, usually to access something
Common Terms that indicate a ROW: Ingress: a right to enter
Egress: a right to exit
Regress: a right to re‐enter or go back
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Highways/Streets May be fee owned or easements for highway purposes
Depends on the manner of creation
Presumption of an easement unless fee can be show to have been acquired
Shared Driveway Cross easement or reciprocal easement by which each owner of a portion of a driveway grants the other an easement over their respective portion
Beware the prohibition of granting yourself an easement over your own lands
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Water Rights Draw water
Access a body of water
Lay pipes
Use a well
Utilities Storm drains
Sewer pipes
Electrical and transmission lines
Telephone and cable
Gas lines
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Light and Air Easement that perpetually allows light and air to enter the windows of a building from an adjoining lot
Express easements only Exceptions:
Property bounded on street
Strictly necessary and was the intent of the parties
Party Walls Easement of the owner of either building extends only over so much of his neighbor’s lands as the party wall stands upon,
Easement right of support of the wall and presence of the flues
Aviation Easement for Avigationpurposes of the airspace over certain properties
Usually defined as a plane with a rise and a run
Kupster Realty Corp v. State of New York, 93 Misc 2d 843 (Ct of Claims, 1978) [for the Republic Airport in Farmingdale, NY]
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Burial Plots A “property right”
Yet no dominant & servient estates
Easement for burial purposes
Privilege of Erecting tombstones and monuments
Protecting them from injury or spoilation(injunction)
Conservation Easements: No dominant and servient estates
"Conservation easement" means an easement, covenant, restriction or other interest in real property…which limits or restricts development, management or use of such real property for the purpose of preserving or maintaining the scenic, open, historic, archaeological, architectural, or natural condition, character, significance or amenities of the real property
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Conservation Easement con’t.
It is not a defense in any action to enforce a conservation easement that:
(a) It is not appurtenant to an interest in real property;
(b) It can be or has been assigned to another holder;
(c) It is not of a character that has been recognized traditionally at common law;
(d) It imposes a negative burden;
(e) It imposes affirmative obligations upon the owner of any interest in the burdened property, or upon the holder;
(f) The benefit does not touch or concern real property; or
(g) There is no privity of estate or of contract.ECL § 49‐0305
Conservation
Easement con’t.
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Also known as Affirmative and Negative Restrictions or Covenants
Little boxes on the hillside,Little boxes made of ticky tacky,Little boxes on the hillside,Little boxes all the same.There's a green one and a pink one And a blue one and a yellow one,And they're all made out of ticky tackyAnd they all look just the same.
Little Boxes by Malvina Reynolds
Negative easement is one which restrains a landowner from making certain use of his land which he might otherwise have lawfully done but for that restriction
Runs with the land
Affirmative Easement:
a covenant to do an affirmative act, as distinguished from [one] merely negative in effect,
does not run with the land so as to charge the burden of performance on a subsequent grantee
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Affirmative Easements do not run with the land
Exception to the rule: “The burden of affirmative covenants may be enforced against subsequent holders of the originally burdened land whenever it appears that
(1) the original covenantor and covenantee intended such a result,
(2) there has been a continuous succession of conveyances between the original covenantor and the party now sought to be burdened and
(3) the covenant touches or concerns the land to a substantial degree.”
Example:
To furnish steam heat to the neighboring building touched and concerned the land and was enforceable against subsequent grantee
Example:
To construct a shaft (from a mill wheel) to provide a good connection to the neighboring property was an obligation of the grantor that he could not pass to his grantee to perform upon conveyance of the property
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Creation and Existence of Easements
occurs when the easement is (1) conveyed in writing, (2) subscribed by the creator, and (3) burdens the servient estate for the benefit of the dominant estate
The easement passes to subsequent owners of the dominant estate through appurtenance clauses, even if it is not specifically mentioned in the deed
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Example: 35 foot
wide easement for a
drive and utilities
Express Easement
Express Easement
When lot 1 was sold
by Grantor, this filed
map was recorded
and Grantor made
the conveyance of
Lot 2 subject to the
ROW shown on this
referenced map
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General Obligations Law § 5‐703. Conveyances
and contracts concerning real property required to be in writing
1. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing….
Document conveying an interest in real property must have: Grantor Grantee Proper designation of the
property Recite the consideration Contain operative words Be acknowledged before
delivery Execution and delivery
attested to by a subscribing witness
Types of Documents capable of conveying a real property interest: Map filed in EDPL
Proceeding Will Agreement Deed
Grants Reservations
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Limitations from the common law (things you can’t do): Convey an easement to yourself over your own lands even if they are separate parcels
Create or grant an easement over another persons lands
Create or grant an easement to a third party in a deed between A&B
Piggy‐back easements
EXPRESS EASEMENTS
Adjoining
Parcels owned by
same person.
She attempted to
grant an
easement over
one of the
parcels to
herselfNullity
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An individual cannot grant or have an easement over land they own “because all the uses of an easement are fully comprehended in the general right of ownership.” Will v. Gates,89 NY2d 778 (1997). There is no servient or dominant estate, they have merged by the unity of title in a common owner. Id. at 784.
RESULT: LEGAL NULLITY
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Fatal Errors of Law: Grants an easement over her own lands to herself
Grants to Parcel B, Parcel A’s easement of necessity over the lands of others Grants an easement over lands she doesn’t own and can’t burden
Attempts to “Piggy‐back” the easement for Parcel A to benefit Parcel B as well
Hunt v. Pole Bridge Hunting Club, Inc. 219 A.D.2d 618 (2d Dept, 1995) (Orange County, NY)
Hunt had a ROW for his 21.7 Acre parcel
Hunt and friend acquired an adjacent 529 Acre parcel
Hunt and friend used the ROW for Hunt’s 21.7 Acre parcel to reach their 529 Acre parcel
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The Court citing Williams v. James, L.R. 2 C.P. 577 and Mancini v. Bard, 42 N.Y.2d 28, held:
“the owner of the dominant tenement may not subject the servient tenement to servitude or use in connection with other premises to which the easement is not appurtenant”
NO PIGGY‐BACKING
Matter of Thompson v. Wade, 69 NY2d 570 (1987)
Grantor (G) owned property on the St. Lawrence River in the Village of Alexandria Bay
G subdivided and conveyed out the parcel along the River to Plaintiff (P) and retained the parcel along the public highway.
G did not grant P a ROW to reach the Public Highway
G then conveyed his retained lands to Defendant (D) and reserved to himself and P a ROW to reach P’s land from the Public Highway
P is a stranger to the Deed
G has an easement in gross because he no longer owns lands appurtenant
P’s successor builds a hotel on its parcel
D blocks access
P then tried to acquire G’s easement BUT it was not transferable because it was in gross.
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Thomson Motor Lodge: Vacant Commercial Property
Alternative 1:
Within the deed to P, Grantor could have granted a ROW to P over his retained lands
When Grantor conveyed to D all he had to say was that the conveyance was subject to the ROW granted to P
Alternative 2:
Grantor conveys property to P without a ROW.
P and Grantor could have subsequently entered into an Easement agreement and recorded it before Grantor conveyed remaining lands to D
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McColgan v. Brewer, 84 A.D.3d 1573 (3d Dept 2011).
“ A party cannot reserve an easement over another's property in favor of a third party who is not a party to the agreement”
STRANGER TO THE DEED
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“Kirschner's reliance on the language in the agreements providing that the rights‐of‐way granted therein are "for the use and benefit of the properties owned by the parties [thereto], as well as other parties " (emphasis added) is misplaced. Such commonly used language is merely an indication that the right‐of‐way is not for the exclusive use of the grantee insofar as the grantor has either already conveyed rights‐of‐way over the same lands by some other instrument or is reserving the right to do so in the future.” McColgan, Supra.
Public Easements acquired pursuant to the Eminent Domain Procedure Law (EDPL) and its predecessor statutes Vest title upon filing of the Acquisition Map.
EDPL §402 (A)(3) file a certified copy of such acquisition map in the office of the county clerk or register of each county in which such property or any portion thereof is situated, and thereupon, the acquisition of the property by the state, described in such map shall be deemed complete and title to such property shall be vested in the state.
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Typically the Condemnor obtains the fee, but sometimes they acquire something less, such as a permanent easement.
In the absence of clear language that the fee was acquired only the interest necessary to fulfill the purpose will be presumed to have been takenEasement in unless it says Fee or indicates by other language such as “All Right, Title and Interest”
Express Easements: Public
NYS DOT Template
Acquisition Map
Page 3
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The Appurtenance Clause: Example: “Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises…”
Boilerplate language
“The purchaser will take the estate, with all the incidents and appurtenances which appear to belong to it at the time of the grant, as between it and the portion retained, though not then in actual use, providing the grantor has knowledge of their existence, and they are open and visible” Spencer v. Kilmer 151 NY 390 (1897)
Spencer v. Kilmer 1866 Defendant purchased
large vacant lot in Saratoga Bounded on the south by
Congress Street, north by Spring Street, east by Circular Street and west by “Wall Brook”
It included 2 fish ponds which were supplied with water from the springs.
1870 Defendant sold portion to John Morrissey upon which he built his Clubhouse (aka Casino)
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In 1870 Morrissey rented a portion of the property with the fish ponds (dominant estate) and eventually bought that portion of the property
Spencer then acquired the rest of the property (servient estate) and ripped out all the pipes and sluices providing water to the ponds
Congress Park
Result: Spencer owed damages
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Creation and Existence of Easements
Not expressed in writing, but implied from the circumstances of severance of title
All types require a showing that there was unity of title in a common grantor as a prerequisite to implying the grant of an easement
Common Grantor: both the purported servient estate and dominant estate were owned by the same person/entity
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Courts sometimes blend the elements of these four distinct easements Implied easement in the bed of a former public hwy
Implied easement from pre‐exiting use
Easement of Necessity
Paper Street Easement
Implied Easement in the bed of a former Hwy A Common Grantor owned dominant and servientestate in unity of title
Divided the property along the lines of the existing public highway to which s/he owned the underlying fee (the hwy was an easement hwy vs. fee hwy)
Highway is abandoned by 6 years of non‐use and non‐maintenance by the public (NY High Law 205)
Land no longer has access, is landlocked
Law will imply an easement in the abandoned hwy
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“private easement of access arises in order to insure that a grantee or his successors in title are not deprived of the use of the right of way existing at the time title (to the lot) was acquired.” Kent v. Dutton, 122 AD2d 558 (4th Dept. 1986)
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Ciarelli v. Lynch et al., 69 A.D.3d 1008 (3d Dept 2010)
“As the evidence established that the road was a public highway, we need not reach the various arguments advanced by the parties regarding the existence of a private easement over it.”
Unity and then separation of title
the claimed easement must have, prior to separation, been so long continued and obvious as to show it was intended to be permanent, and
the use must have been necessary to the beneficial enjoyment of the dominant estate at the time of the conveyance.
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Necessary means in this context of an easement based on pre‐exiting use:
“only reasonable necessity, in contrast to the absolute necessity required to establish an implied easement by necessity.” Four S. Realty Co. v. Dynko, 210 A.D.2d 622 (3d Dept 1994).
Courts have used the reasonable necessity standard vs. absolute necessity standard to imply easements by necessity (Rudolph v. Ferguson; Simone v. Heidelberg)
Have also said that terrain making access to a public highway impossible except over remaining lands of the common grantor allowed the implication of an easement by necessity (Stock v. Ostrander)
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Unity and separation of title
At the time of severance of title,
the way is ABSOLUTELY necessary for the landlocked parcel
Significantly, “the necessity must exist in fact and not as a mere convenience” and must be indispensable to the reasonable use for the adjacent property. Simone v. Heidelberg, 9 NY 3d 177 (2009)
The necessity must arise upon severance of title, not at some later date
there “must be shown a severance of unitary title which gives rise to an immediate necessitywhich may lie dormant but must, at the very least, exist contemporaneously with the severance.” Willow Tex, Inc. v. Dimacopoulos, 120 Misc.2d 8 (Sup. Ct. Queens Co., 1983)
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Common Grantor or sub‐divider Reference in deed or conveyance to the filed subdivision Map
Map shows streets abutting the lot
Implied easement in the “streets” shown on the map for the lot, whether the streets have been built out or not
the most important indicators of the grantor's intent are: the appearance of the subdivision map and
the language of the original deeds.
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“While courts in other jurisdictions have held that such an easement extends to all streets delineated on a subdivision map or plat (citations omitted), the prevailing and most current view in this State appears to be that a grantee acquires an easement by implication only over the street on which his property abuts, to the next intersecting streets, i.e., an easement of access.” De Ruscio v. Jackson, 164 A.D.2d 684 (3d Dept 1991)
Busch v. Harrington
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Don Busch owned cottage lots 101‐107 plus an adjoining 73 Acre woodlot
In 1980 Tebbutt Road was built to the west along Busch’s boundary line
Don Busch created a driveway off Tebbutt Road, in nearly the exact location as the paper street shown on the map
In 2003 Harrington purchased lots 110&111 and began using Mr. Busch’s driveway to access his property from the west
Specifically, since 1929, owners of lot 108 and all lots to its east accessed their properties by way of a dirt road (referred to as either “the road to Onchiota” or “the as‐built road”) which begins at lot 107 and generally runs in an easterly direction. This road connects with another dirt road (referred to as “the road from Onchiota to the dam at the foot of Rainbow Lake” or Adirondack‐Florida School Road or MeenahgaMountain Road). This latter road, in turn, connects with a main road (formerly known as County Route 30/Gabriels‐Onchiota Road and now known as County Route 60/Gabriels‐Onchiota Road
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“The record demonstrates that the intent of the parties' common grantor was to provide a right of passage from the subject lots to the east (ultimately leading to a main road) with no intent, express or implied, to provide a right of passage along the paper road to the west. Busch v. Harrington, 63 A.D.3d 1333 (3d Dept., 2009).
Creation and Existence of Easements
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open and notorious,
adverse under a claim of right
uninterrupted
undisputed (continuous) use of land
For the statutory period (10 years)
(exclusive sometimes an element, but it means a unique use that is adverse to the true owner)
Results in an easement by prescription
Seasonal use is enough
Compare with Adverse possession: Possession of another’s land results in Title/ownership
Use of another’s land results in an Easement/right to continue to use
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Once the elements are demonstrated, the purported servient estate holder must show the use was with permission or by license to defeat a finding of easement.
Use in common with the general public will not result in an easement by prescription (Pirman v. Confer, 273 N.Y. 35 (1937)
Use in common with neighbors and the servient estate holder is not “adverse”
Use and Maintenance by the public for the statutory period results in a public easement for highway purposes
West Galway Road, Saratoga County NY
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§ 189. Highways by use
All lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway…..
The Statutory Period is 10 years
Between 1959 and 1963 it was 15 years
Prior to 1959 it was 20 years.
Curtis v Town of Galway, 50 AD3d 1370 [2008].
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Village Law §6‐626‐Streets by prescription
All lands within the village which have been used by the public as a street for ten years or more continuously, shall be a street with the same force and effect as if it had been duly laid out and recorded as such.
No analogous statute in the City Law. See City of NY v. Gounden, 2013 N.Y. Misc. LEXIS 689 (Queens Co. Jan. 22, 2013)
“used by the public as a highway” Highway Law 189
“used by the public as a street” Village Law 6‐626
What does that mean?
“naked use” by the public does not convert the roadway into a public highway. See Pirman v. Confer, 273 N.Y. 35 (1937).
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A public highway can be created “By prescription, or where land is used by the public for a highway for 20 years, with the knowledge, but without the consent, of the owner. The presumption of a grant of the right of way springs from the mere lapse of said period of time in connection with the adverse user by the public.” Cohoes v. D&H Canal Co. 134 N.Y. 397 (1892)
New York Courts as late as 1913 recognized two methods to acquire a public highway by use:
1) Public use that was hostile and without the consent of the landowner and
2) Public use coupled with public maintenance.
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“The words ‘used by the public as a highway’ mean that there must be an assumption of control, of maintenance, of repair in a continuing way, a taking charge by the public authorities, a treating of the road as a public highway like other town highways generally so that the town becomes responsible for its condition” Goldrich v. Franklin Gardens Corp 115 NYS 2d 72 (Sup. Ct. Nassau Co, 1952). Rev’d on other grounds, 282 A.D. 698 (2d Dep’t 1953) citing, People v. Sutherland, 252 N.Y. 86, at page 91.
Courts interpreting the Village Law have applied the same test to find a Village Street created by prescription: public use coupled with public maintenance for the statutory period Marchand v. NYS DEC, 19 NY3d 616 (2012)
Impastato v. Village of Catskill, 43 NY2d 888, (1978)
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“The general rule is that when the language of the statute will bear a construction which will leave the fee in the landowner, that construction will be preferred. If the title to land in the bed of a highway depends upon presumptions, the general rule seems applicable that only an easement was taken.”
Mott v. Eno, 181 NY 346 (1905).
Real Property Law §261 Maintenance of telegraph or other electric wires raises no presumption of grant.
Whenever any wire or cable used for any telegraph, telephone, electric light or other electric purpose, or for the purpose of communication otherwise than by the aid of electricity, is or shall be attached to, or does or shall extend upon or over any building or land, no lapse of time whatever shall raise a presumption of any grant of, or justify a prescription of any perpetual right to, such attachment or extension.
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Creation and Existence of Easements
“…a grant of an easement by an instrument which is unacknowledged and unattested may nevertheless support equitable rights and interests in property which, when established by possession and improvements, are effective against a subsequent purchaser of the servient estate who takes with actual knowledge of the possession and improvements.” Kienz v. Niagara Mohawk Power Corp., 41 A.D.2d 431 (4th Dept 1973)
See also: Loughran v. Orange and Rockland Utilities, Inc., 209 A.D.2d 917 (3d Dept 1994)
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Kildare Road in Tupper Lake, Franklin CountyIron Mountain Forestry, Inc. v. Friedman, 33 Misc. 3d 1227A (1998)
§ 300. Private road
An application for a private road shall be made in writing to the town superintendent of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed to be laid out.
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“The taking of private property for the construction of private roads was permitted under the Colony of New York's statutes, and this provision was retained by the State of New York until 1843. In 1843 the New York Supreme Court… held that the statute was unconstitutional.” Pratt v. Allen, 116 Misc 2d 244 (Sup. Ct. Chemung Co., 1982)
New York State’s Constitution was thereafter amended to allow private condemnation
Article 1 Section 7(c) of the NYS Constitution now states:
Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefited.
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Highway Laws §§300‐307 set forth the procedure
It is now well established that “Public Purpose” or “Public Benefit” are not limited to sole occupancy or use by the public and includes opening up otherwise landlocked private properties for use and development (and taxation). Pratt Supra.
§ 301. Jury to determine necessity and assess damages
§ 302. Copy application and notice delivered to applicant
§ 303. Copy and notice to be served
§§304‐306 Relate to selecting and paying the jurors.
§ 307. Their verdict
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“The Legislature evidently considered this method of laying out private roads the work of laymen rather than lawyers.” In Re Bell, 131 Misc. 734 (Sup. Ct. St. Lawrence Co., 1928)
“[A]n ancient and archaic provision of the Highway Law which is unique and rarely utilized.” Preserve Assoc. v. Nature Conservancy, Inc. 934 N.Y.S.2d 678 (Sup. Ct. Franklin Co., 2011). November 28, 2011
Section 300 of the Highway Law cannot be used for:
Condemning public property for a private easement Leonard v. Masterson, 70 A.D.3d 697 (2d Dept 2010).
Installation of Utilities Preserve Associates, LLC v. The Nature Conservancy, Inc., 934 N.Y.S.2d 678 (Sup. Ct. Franklin Co., 2011).
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Easement is defined in the writing as to location and width
When the easement is stated as over a certain width: whether the reference is to the width of the way or is merely descriptive of the property over which the grantee must have such a way as may be reasonably necessary depends on the circumstances of the case
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Examples: that plaintiff holds "a right of way two rods (33 feet) wide along the shore of the aforesaid swamp to the highway"…. Upon our review, we find that the presently constituted driveway, measuring 12 feet at its widest and 9 feet 8 inches at its narrowest point, has provided and continues to provide a reasonable and convenient means of ingress and egress, fulfilling the purpose for which it was created.” Serbalik v. Grey, 268 A.D.2d 926 (3d Dept. 2000).
A 30 foot wide ROW granted in deed, established roadway was a 12 foot paved width, court held that the easement be limited to the 12 foot paved width. Minogue v. Kaufman,124 A.D. 2d 791 (2d Dept. 1986).
Where the easement granted a right to travel over a 20 foot strip of land or street at all times, the court found the entire 20 foot width that was in use was necessary for traveling purposes. Mandia v. King Lumber and Plywood Co.,Inc. 179 AD2d 150 (2d Dept. 1992)
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Location and Width of Easements
Once definitively located, by agreement or use, an easement cannot be moved unilaterally by one party Definitively located = metes and bounds description
Undefined location: the courts may exercise their equitable powers to locate an easement when the parties have failed to designate the route.
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If the location is not definitively fixed the easement can be moved by the servient estate holder,
Example a grant of easement “over the driveway in a south‐westernly direction” is not a definitively fixed easement
Easements by necessity are usually located upon the existing ways
“their parcel became landlocked by other properties with no access to a public highway due to the nature of the surrounding terrain, except via the dirt road across the lands owned by Ostrander, defendant's predecessor in title” Stock v. Ostrander 233 A.D.2d 816(3d Dept 1996)
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Easements by prescription are located where the use occurred.
Implied easements from pre‐existing use and in a former public highway are located where the existing way was/is located.
Paper street easements are where they are shown on the map
Location and Width of Easements
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Width used
Width described
Width reasonably necessary to fulfill the grant/purpose
Malasadas at the Punalu’u Bake Shop, Hawai’i
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Definitions:
Servient Estate Holder: Owner of the land burdened sometimes referred to as the Landowner
Dominant Estate Holder: Owner of the benefited or Dominant Parcel sometimes referred to as the Easement Holder
Landowners generally owe a duty to people on their property
that their property is in a reasonably safe condition
considering all of the circumstances including the purpose of the person's presence and the likelihood of injury
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Landowners who are burdened by an easement:
Have a PASSIVE DUTY to refrain from interfering with the rights of the Dominant Estate holder
Have NO DUTY to maintain the easement for the Dominant Estate holder unless by agreement/arrangement
Landowners with respect to an easement on their land have the right:
"to have the natural condition of the terrain preserved, as nearly as possible” and
"to insist that the easement enjoyed shall remain substantially as it was at the time it accrued, regardless of whether benefit or damage will result from a proposed change." Lopez v. Adams, 69 A.D.3d 1162 (3d Dept 2010).
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Landowners can use their property, even that part burdened by the easement, in any way they deem fit so long as it does not interfere with the use of the easement by the Dominant Estate holder
Landowners can: Narrow the easement
Cover the easement
Gate the easement
Fence the easement
And sometimes, relocate the easement
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Landowner may unilaterally Relocate an easement when: the landowner bears the expense of the relocation, and
the change does not frustrate the parties' intent or object in creating the right of way,
does not increase the burden on the easement holder, and
does not significantly lessen the utility of the right of way
Easement Holder:
“One does not possess or occupy an easement or any other incorporeal right.” Owning an easement ≠ Owning the land where the easement is located nor does it give a right of exclusive possession of the land where the easement exists
“An easement derives from use, and its owner gains merely a limited use or enjoyment of the servientland.”
Di Leo v. Pecksto Holding Corp., 304 NY 505 (1952)
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Easement Holder has the right to:
Maintain their easement
Use the easement without interference
Easement holder cannot: Improve the easement (Widen, pave, install ditches)
Materially increase the burden on the servient estate (frequency of use)
Impose new or additional burdens on the easement (add utilities to a right of ingress and egress)
Use the easement to benefit another parcel not appurtenant (no piggy‐backing)
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Easements “in common with others”
Easement holders of these types of easements cannot: Cut down the grade or impair the easement to the detriment of the other easement holders
interfere with the reasonable use of the easement by his or her co‐owners, or
make alterations that will render the easement appreciably less convenient and useful to any one of the cotenants
Liability for Injuries on the Easement:
Landowner owes a duty, but If an injury results not
from any unsafe condition the landowner left uncorrected on his land, but as a direct result of the course the easement holder takes in attempting to maintain the easement, then the easement holder is liable
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As the dominant owners, Easement Holders are responsible for maintaining and repairing the roadway
in the absence of an agreement to do so, landowners are not obligated to make repairs or contribute to the cost of maintaining a roadway for the benefit of the Easement Holder
Public Utility Easements often set forth their right to maintain the easement within the easement agreement itself greater clarity between the parties
“Together with the right to trim, cut, spray, and remove trees and brush to the extent necessary to clear said wires, cables and pole lines by at least 4 feet.”
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Once fixed in character an easement cannot be improved
The servient landowner has the right: "to insist that the easement enjoyed shall remain substantially as it was at the time it accrued, regardless of whether benefit or damage will result from a proposed change." Lopez v. Adams, 69 A.D.3d 1162 (3d Dept 2010).
Once a gravel right of way, Always a gravel right of way.
92 N.Y.2d 443 (1998)
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Southampton, New York
Original Lot divided into 3 Lots
Back 2 lots given access over the front lot retained by grantors (the Browns) to reach South Ferry Road
it provided for “the perpetual use, in common with others, of the [Browns'] main driveway, running in a generally southwesterly direction between South Ferry Road and the [Browns'] residence premises.”
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The Youngs purchased the property (from the Browns) with the intention of substantially improving it by razing the then‐existing small cottage and replacing it with a large new residence, adding an in‐ground swimming pool and building a tennis court.
Halsey House, Southampton NY by Kforce at en.wikipedia
the renovations, included relocating the existing driveway in order to make room for the tennis court
The new driveway, still “running in a generally southwesterly direction between South Ferry Road and the [Youngs'] residence premises,” actually overlapped at some points with the original driveway.
At its point of greatest deviation, the relocated driveway was 50 feet from the original driveway.
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As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder
Mere use of a particular path in accordance with an explicit right to do so is neither hostile nor adverse.
continued usage of the same path does not in and of itself fix an otherwise undefined location so as to enlarge the interest of the easement holder or reduce the interest of the landowner.
the indefinite description of the right of way suggests… that the parties intended to allow for relocation by the landowner. Notably, the parties themselves in the same deed described two additional easements by explicit reference to metes and bounds. Had they intended the right of way to be forever fixed in its location, presumably they would have delineated it in similar fashion.
The provision manifests an intention to grant a right of passage over the driveway‐wherever located‐so long as it meets the general directional sweep of the existing driveway
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Balancing Test:
“In the absence of a demonstrated intent to provide otherwise, a landowner, consonant with the beneficial use and development of its property, can move that right of way, so long as the landowner bears the expense of the relocation, and so long as the change does not frustrate the parties' intent or object in creating the right of way, does not increase the burden on the easement holder, and does not significantly lessen the utility of the right of way”.
“a landowner, consonant with the beneficial use and development of its property, can move that right of way, so long as the landowner bears the expense of the relocation, and
so long as the change does not frustrate the parties' intent or object in creating the right of way,
does not increase the burden on the easement holder, and
does not significantly lessen the utility of the right of way”
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Route 30 pull off near Indian Lake
Narrowing,
Gating,
Fencing,
Covering
an easement are all permitted alterations to an undefined easement ingress and egress so long as the right of passing to and fro was not impaired.
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As a matter of policy, affording the landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner's right to use and enjoy the property and the easement holder's right of ingress and egress. Lewis v. Young, Supra
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Threshold Question: Whether the obstruction or encroachment frustrates the purpose of the easement
the erection of a portico, which extended a short distance into the road, so as to reduce it at that point to somewhat less than forty feet, did not lessen the enjoyment of the right of way. Grafton v. Moir, 130 N.Y. 465 (1892).
“It follows that the act of the defendant in destroying or removing them (water pipes) was unlawful, and that the plaintiff was entitled to recover his damages, and to have the equitable remedies awarded by the judgment.” Spencer v. Kilmer 151 N.Y. 390 (1897)
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By its language the grantee is entitled, not only to a right of way, but one which carries with it a free and unobstructed use of the described land for passage of horses and vehicles of every kind and 'for all other lawful purposes' in common with the owners of other abutting lands.
here the use granted is free and unobstructed. The erection of a gate, even if kept unlocked, to some extent interferes with and obstructs defendant's right of passage, and is inconsistent with the grant. Missionary Society of Salesian Congregation v. Evrotas,256 N.Y.86 (1931)
Before Lewis v. Young:
the general rule was that ‘* * * whether or not the servient owner may (erect fences on or gates or bars across the right of way) depends upon the intention of the parties connected with the original creation of the easement, as shown by the circumstances of the case, the nature and situation of the property subject to the easement, and the manner in which the way has been used and occupied. Such is a question of fact and is to be determined as such.’ Sprogis v. Silleck, 223 N.Y.S.2d 979 (Sup. Ct. Putnam Co., 1961)
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“In the rural past, when the most common forms of travel were by foot and horse, and when the user of a right of way through agricultural or pasture land was not discommoded to any great degree by the erection of movable fences or gates, the Courts did not consider that such obstructions were unlawful where the reasonableness of their maintenance was shown by establishing long uses or necessity.” Sprogis Supra.
Later decisions too, recognize the right of an owner to maintain gates or fences across a right of way where there appears a reasonable basis for their existence and the user of the right of way is not substantially inconvenienced thereby.
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In Sprogis the Defendant had fenced in the ROW and pastured his animals in the roadway, despite having 20 other Acres of land he could have used for pasture “The plight of these plaintiffs, confronted by gates which must be opened and closed upon entering or leaving Peekskill Hollow Road, together with the additional burden of walking or driving through the lot populated by defendant's animals, with the responsibility of preventing the straying of those animals on to a heavily travelled public highway when the gates are opened, is readily seen.” Id.
Implied Easements can be fenced and gated “It has been held that, in the case of express grants of easements in existing ways which are obstructed by fences and gates, then physically present upon the ground, the enjoyment of the easement granted is made subject to the right of the grantor reasonably to limit access and egress by maintaining the obstructions…
If this be the correct doctrine in reference to easements expressly granted, its correctness in the case of easements resting in implication must be all the more apparent.” Erit Realty Corp. v. Sea Gate Ass’n., 249 N.Y. 52 (1928) [paper street was fenced and gated at time of conveyance]
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Easements in Gross: Cannot be transferred
Personal to the individual
Extinguish when the individual dies
Sylvan Beach on Oneida Lake
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Transfer of the Dominant Estate (the property benefited by the easement)
If the common grantor conveys both the dominant and servient properties, the easement must be provided for in the deed to the dominant property and in the deed conveying the servient property
Often the Dominant Estate will be transferred “together with an easement” but the Servient Estate will not be transferred “subject to” the easement
Problem
Transfer of Easements
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Division of the Dominant Estate
A has an Easement over B
A divides their land into A1, A2, and A3.
All new lots, A1, A2 and A3 have the same easement rights over B so long as they don’t overburden B
Since further division of the property is deemed a future possibility contemplated by the original parties, B usually cannot complain
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Reserved Easements:
Reserved easements create a dominant parcel in those lands retained by the Common Grantor over the lands conveyed to the grantee
Grantor may also reserve an easement in gross
Reservation
is something taken back from what has been granted
“A reservation is a clause in a deed, whereby the grantor doth reserve some new thing to himself out of that which he granted before.”
Exception
that which is excepted is not granted at all
“an exception is of some part of the estate not granted at all."
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Transfer of the Servient Estate
Deed must state the property is “subject to” or otherwise burdened by an easement in favor of the dominant parcel
The easement must be recorded somewhere in the servient estate’s chain of title
“a deed conveyed by a common grantor to a dominant landowner does not form part of the chain of title to the servient land retained by the common grantor” Witter v. Taggart, 78 N.Y.2d 234 (1991).
RECORD NOTICE:
A servient estate holder is bound by what is recorded as an encumbrance against their property when that encumbrance is in their direct chain of title
Map, deed, easement, mortgage, lien.
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CONSTRUCTIVE or INQUIRY NOTICE
Something in the chain of title that makes you question whether there is an encumbrance against your property
“If there is sufficient contained in any deed or record which a prudent purchaser ought to examine, to induce an inquiry in the mind of an intelligent person, he is chargeable with knowledge or notice of the facts so contained.” The Cambridge Valley Bank v. Delano, 48 N.Y. 326 (1872) [regarding a mortgage]
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ACTUAL NOTICE
Upon inspection of the property pre‐purchase you observe an encumbrance physically on the property
held to having actual knowledge and are thus burdened with the encumbrance
COMMON PLAN or SCHEME
Purchaser will be bound by community restrictions when they had actual or constructive notice of a common plan or scheme of development by a common grantor
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An easement acquired by grant “remains as inviolate as the fee favored by the grant, unless conveyed, abandoned, condemned or lost through prescription” Gerbig v. Zumpano,7 N.Y.2d 327 (1960).
Remember: Implied Easements are Impliedly Granted and Easements by Prescription are premised upon a “lost grant” this rule applies to all easements
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the party seeking to extinguish the easement must establish that the use of the easement has been
1) adverse to the owner of the easement,
2) under a claim of right,
3) open and notorious,
4) exclusive and continuous
5) for a period of 10 years.”
Spiegel v. Ferraro, 73 N.Y.2d 622 (1989)
Hostility/Adversity is NOT presumed as in typical AP situations
The servient landowner must INTERFERE with to the point of EXCLUDING the easement holder from using the easement for the statutory period
Because uses of the servient land by the landowner are not adverse to the easement holder’s easement until they interfere with the easement holder’s ability to use the easement for the purpose for which it was granted
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Servient Landowner:
used the easement to hike, take nature walks and cross‐country ski, and while they also planted and mowed near it, such uses were not inconsistent with the easement itself or adverse to the easement holder
Adverse Possession cannot extinguish a paper street easement or one that has yet to be located
Rational: because the owner of the easement has had no occasion to assert the right of way during part of the prescriptive period.
"paper" easements may not be extinguished by adverse possession absent a demand by the owner that the easement be opened and a refusal by the party in adverse possession. Spiegel Supra.
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Public Highway Easement:
Abandonment by operation of law: Non‐use by the public
Non‐maintenance by the public authority
For six years
NY High §205
Private Easement:
Intent to Abandon the Easement
Overt Act(s) demonstrating the intention to Abandon the Easement
Heavy burden to prove/difficult
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NONUSE, no matter how long continued does not extinguish a private easement, whereas NONUSE is an element for the abandonment of a public hwy.
EXAMPLES: Alternate access to a public hwy + blocked easement + built garden partially in the easement=abandoned
Alternate access to a public hwy + unchecked growth of trees obstructing the easement perhaps showed abandonment
Merger of Title
Agreement of all the Parties
Conveyance to a Bona Fide Purchaser (BFP) for Value who has no actual or constructive notice of the easement
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Merger Doctrine: An easement is extinguished when the Dominant and Servient Estates become vested in (owned by) the same person
“At that point, the easement no longer serves a purpose and the owner may freely use the servientestate as its owner .” Will v. Gates, 89 N.Y.2d 778 (1997).
"Once extinguished, an easement is gone forever and cannot be revived"
Sam Development LLC v. Dean 292 AD2d 585 (2nd Dept, 2002) quoting (Stilbell Realty Corp. v Cullen, 43 AD2d 966, 967).
If the property is split back up again, the easements must be re‐created.
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All parties benefited by the easement can agree to extinguish the easement
Release of Easement
Paper Streets: All property owners on the subdivision map which shows the paper street have to sign agreements releasing their easement rights
“A grantor may effectively extinguish or terminate a covenant when, as here, the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land's chain of title.”Witter v. Taggart 78 N.Y.2d 234 (1991).
“..a narrow exception to this rule has been carved out in counties where a “block and lot” indexing system is used.” Terwilliger v. VanSteenburg, 33 A.D.3d 1111 (3d Dept 2006).
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Eminent Domain
“When defendant (New York State) takes property through eminent domain, it takes in fee simple absolute and extinguishes all easements.” Thomas Gang Inc. v. State, 19 A.D.3d. 861 (3d Dept 2005).
Tax foreclosures do not extinguish easements or other restrictive covenants. O’Mara v. Wappinger, 9 N.Y.3d 303 (2007)[open space restriction]
“When Absolute acquired title at the tax sale, a description of the property was limited to its tax grid number….. In order to determine the boundaries of its holdings, Absolute should have searched the County Clerk’s property records until it found the subdivision plat that created its parcel. Had Absolute examined the plat, it would have discovered the open space restriction.” Id.
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Handoutfor
EasementLawinNewYorkPresentedfor
theNewYorkStateBarAssociationMay14,2014LongIslandMay21,2014NewYorkCity
May28,2014Albany
I. Introduction:
a. Definition:AnEasementisaninterestinrealproperty.Henryv.Malen,263
A.D.2d698(3rdDept.1999)
i. “…an easement presupposes two distinct tenements, one dominant, the other servient.”
Loch Sheldrake Associates Inc. v. Evans, 306 N.Y. 297 (1954)
ii. “An easement is an interest in land created by grant or agreement, express or implied,
which confers a right upon the owner thereof to some profit, benefit or dominion, or
lawful use out of or over the estate of another.” Huyck v. Andrews, 113 N.Y. 81 (1889).
iii. Therehastobeaburdenedparcelofrealpropertyandabenefited
parcelofrealproperty.
b. AscomparedtootherrightsandinterestsinRealProperty
i. Licenses:notaninterestinrealproperty,personaltotheholder,not
assignableandareoflimitedduration.Henry,Supra.
1. “A license is a privilege, not a right, sometimes called an easement in gross.”
Loch Sheldrake Asso. Inc., Supra
2. A“Franchise”isatypeoflicense.NewYorkTelephoneCo.,v.
State,67A.D.2d745(1979);AmericanRapidTelegraphCo.,v.
Hess,125N.Y.641(1891).
3. “Licenses to do a particular act do not in any degree trench upon the policy of
the law which requires that bargains respecting the title or interest in real estate,
shall be by deed or in writing. They amount to nothing more than an excuse
for the act, which would otherwise be a trespass. Davis v. Townsend, 10 Barb.
333 (1851). (emphasis mine).
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ii. Covenants:anagreementorpromisetodoornottodosomething.
Theycanbepersonalorcanrunwiththeland(SeeHaldemanv.
Teicholz,197A.D.2d223(3dDept.,1994)
1. “Restrictive Covenants are commonly categorized as negative easements.”
Witter v. Taggart, 78 NY 2d 234 (1991) “They restrain landowners from making
otherwise lawful uses of their property.” Id.
2. Enforceablebetween:
a. GrantorandGrantee,
b. GranteeandGranteewheretherewasaCommon
Grantorwhomadeidenticalcovenantspartofaplanor
schemeofdevelopment,(exceptiontotheStrangerto
theDeedrule)
i. “The long-accepted rule in this State holds that a deed with a
reservation or exception by the grantor in favor of a third
party, a so-called ”stranger to the deed“, does not create a
valid interest in favor of that third party.” Estate of Thompson
v. Wade, 69 N.Y.2d 570 (1987)
c. Adjacentlandownerswhohavemutualcovenants.
Haldeman,Supra.
3. Examples:
a. “(1) A covenant not to suffer any manufactory, business industries, or
stores upon the premises, but to use them for residential purposes only;
(2) a covenant not to suffer any saloon, restaurant, hotel, boarding
house, or tenement house, with a repetition of the statement that the use
shall be residential; (3) a covenant not at any time to sell or subdivide
the premises in lots or plots having a less area than one-half acre…”
Bristol v. Woodward, 251 NY 275 (1929).
b. "nodocks,buildings,orotherstructures[ortreesorplants]shall
beerected[orgrown]"onthegrantor's(Lawrance's)retained
servientlandstothesouth"whichshallobstructorinterferewith
theoutlookorviewfromthe[dominant]premises"overthe
WinganhauppaugeCreek.Witter,Supra.
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c. “The deed conveying the parcels contained three restrictive covenants
which, inter alia, restricted the use of the subject property to
"residential purposes only" and was to be improved "only by a single
family residential dwelling together with normal accessory structures"
Irish v. Besten, 158 A.D.2d 867 (3d Dept 1990).
iii. LateralSupport:
1. “As between the proprietors of adjacent lands, neither proprietor may excavate
his own soil, so as to cause that of his neighbor to loosen and fall into the
excavation. The right to lateral support is not so much an easement, as it is a
right incident to the ownership of the respective lands.” Village of
Haverstraw v. Eckerson, 192 N.Y. 54 (1908).
2. “By the common law an owner of land contiguous to the land of another, upon
which a building is erected, is not bound to protect the owner of the building
against injuries which may result thereto from excavations on his own land, in
the absence of any right by prescription or grant in the owner of the building to
have it supported by the land of the person making the excavation. The natural
right of support, as between the owners of contiguous lands, exists in
respect of lands only, and not in respect ofbuildings or erections thereon.”
Dorrity v. Rapp, 72 N.Y. 307 (1878).
3. “This being the state of the common law upon the subject, the Legislature,
in1855, interposed to regulate the exercise by owners of land in the cities of
New York and Brooklyn of the right of excavation, and to afford to owners of
buildings a new protection against injuries from excavations on adjoining lands.
By the act chapter six of the laws of that year, it is declared that whenever
excavations on any lot in New York or Brooklyn "shall be intended to be carried
to the depth of more than ten feet below the curb, and there shall be any party or
other wall wholly or partly on adjoining land, and standing upon or near the
boundary lines of such lot, the person causing such excavations to be made, if
afforded the necessary license to enter on the adjoining land, and not
otherwise, shall at all times from the commencement until the completion of
such excavation, at his own expense, preserve the wall from injury, and so
support the same by a proper foundation that it shall remain as stable as before
such excavation were commenced." Dorrity Supra.
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4. Original1855Statutewasre‐enacted,thenre‐codifiedasa
municipalordinancewhichwaslaterincorporatedintothe
AdministrativecodefortheCityofNY.
a. NowCodifiedatNYC Administrative Code SECTION BC 3309
Protection of Adjoining Property.
b. Strict Liability Statute regardless of the fact it’s a code rather than a
State statute. See Yenem Corp. v. 281 Broadway Holdings, LLC, 18
N.Y.3d 481 (2012).
5. Lateral Support of Highways: Adjoining landowner owes duty not to under
mind the highway’s lateral support. See Village of Haverstraw, Supra.
iv. AirSpaceorAirRights:
1. “An owner of real property possesses the right to utilize all of its air space.”
1380 Madison Ave. v. 17 E. Owner’s Corp, 2003 NY Slip Op. 51309(U). [air
conditioner case]
2. “…air rights … have historically been conceived as one of the bundle of rights
associated with ownership of the land rather than with ownership of the
structures erected on the land. Air rights are incident to the ownership of the
surface property -- the right of one who owns land to utilize the space above it.
This right has been recognized as an inherent attribute of the ownership of land
since the earliest times as reflected in the maxim, "[cujus] est solum, ejus
est usque ad coelum et ad inferos" ["to whomsoever the soil belongs, he owns
also to the sky and to the depths"].” Macmillan v. C.F. Lex Associates, 56
N.Y.2d 386 (1982). [internal citations omitted]
v. Profit:therighttotakeaproductfromtheland.LochSheldrakeAsso.
Inc.,Supra.
1. “The right to profits, denominated profit a prendre , consists of a right to take a
part of the soil or produce of the land, in which there is a supposable value. It is,
in its nature, corporeal, and is capable of livery, while easements are not, and
may exist independently without connection with or being appendant to otherproperty.” Pierce v. Keator, 70 N.Y. 419 (1877).
2. Examples:totakewaterfromapond,totakelumberortrees
fromtheland,tocultivateormowastripofland.
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3. Aprofitmayalsoconstituteanappurtenanteasementwhere
thereisadominantandservientestate.LochSheldrakeAsso.
Inc.,Supra.
vi. MineralEstateorMineralRights:InorganicSubstances
1. ThesubsurfaceMineralEstateisseverablefromtheEstatein
thesurfaceorsoil.
2. “The rule, as it stands upon the authority of the decisions of this court, is that a
grant, or an exception, of "minerals," will include all inorganic substances,
which can be taken from the land, and that to restrict the meaning of the term,
there must be qualifying words, or language, evidencing that the parties
contemplated something less general than all substances legallycognizable as
minerals.” White v. Miller, 200 N.Y. 29 (1910). [emphasis mine]
3. “It is axiomatic that a mineral estate in a tract of land carries with it the right to
such access over the surface that may bereasonably necessary to carry on
mining activities.” Allen v. Gouverneur Talc Co. Inc., 247 A.D.2d 691 (3d Dept
1998).
4. “…Defendants met their initial burden by establishing that, when Joseph E. Uhl
and Florence P. Uhl conveyed the property in question to defendants'
predecessors in title, they reserved to themselves and their heirs title to all of the
subsurface minerals, including oil and gas. That reservation of title constitutes a
fee simple interest in the subsurface minerals, which includes both title to the
minerals and the right to use any reasonable means toextract them.” Frank v.
Fortuna Energy, Inc., 49 A.D.3d 1294 (4th Dept 2008).
vii. GasandOilLeases:OrganicSubstances
1. General Construction Law § 39. Property, personal The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership.Oil wells and all fixtures connected therewith, situate on lands leased for oil purposes and oil interests, and rights held under and by virtue of any lease or contract or other right or license to operate for or produce petroleum oil, shall be deemed personal property for all purposes except taxation.
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i. See Also Backar v. Western States Producing Co 547 F 2d 876 (5th Cir. 1977) and Wiser v. Enervest Operating LLC, 803 F. Supp. 2d 109 (NDNY 2011)[applying statute to Gas Leases as well as Oil Leases]
II. TypesofEasements:
a. Public/Private
i. Easementisacquiredeitherforthebenefitofthepublicorbetween
privateindividuals/lands
b. Express/Implied
i. ExpressEasement:onethatisinwriting
ii. ImpliedEasement:onethatisimpliedfromthecircumstances
c. Appurtenant/InGross:
i. Appurtenantmeans:abenefitattachedtotheproperty,including
rightsofway,powerlines,waterways,pipes,anyotherelementthat
benefitsthepropertyinsomeway.
ii. An easement is not a personal right of the landowner but is an appurtenance to the land
benefitted by it (the dominant estate). It is inseparable from the land and a grant of the
land carries with it the grant of the easement. Will v. Gates, 89 NY2d 778 (1997).
iii. “An appurtenant easement attaches to and passes with the dominant estate. (internal
citations omitted) There is no requirement that the dominant and servient estates be
contiguous.” Reis v. Maynard, 170 Ad2d 992 (4th Dept. 1991).
iv. Example: “A non-exclusive easement for ingress, egress and regress, in common with
others, over the right of way shown on said Filed Map No. 32 for all ordinary access by
foot or by vehicle between the above described premises and Route 9D.” Will, Supra.
v. RunswiththeLand,sometimesevensaysthatitdoes.
vi. EasementsinGross:arelicenses,personal,non‐assignable,non‐
inheritable,expireuponthedeathoftheholder,sometimescalled
“PersonalEasements”.
1. Examples:
2. “This easement, however, retained by the Terrys must be in gross and, therefore,
is neither assignable nor inheritable, since at the time of the transfer the Terrys
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were no longer possessed of any dominant estate to which an easement
appurtenant could attach.” Gross v. Cizausk, 53 AD2d 969 (3d Dept 1976).
3. “the Santacroses were granted an easement over the strip ‘for their personal
individual use only’, which was ‘not to run with the land’.” Gross, Supra
d. Purposes:
i. RightsofWays:therighttopassoverthelandofanotherfora
particularpurpose,usuallymeansphysicalaccessoverland.
1. Ingress(arighttoenter),Egress(arighttoexit)andRegress(a
righttore‐enter).
2. Moreover, where an easement is created by express grant and its sole purpose is
to provide ingress and egress, but it is not specifically defined or bounded, "the
rule of construction is that the reservation refers to such right of way as is
necessary and convenient for the purpose for which it was created" (internal
citations omitted), and includes "any reasonable use to which it may be devoted,
provided the use is lawful and is one contemplated by the grant" (citations
omitted). Mandia v. King Lumber & Plywood Co., 179 A.D.2d 150 (2d Dept
1992).
ii. Highways/Streets:
1. “Public highways may be created in four ways: (1) By proceedings under the
statute….. (2) By prescription…. (3) By dedication through offer and implied
acceptance…. (4) By dedication through offer and actual acceptance... In the
absence of an actual conveyance, the owner does not part with his title to the
land, but only with the right to possession for the purpose of a highway.” City of
Cohoes v. Delaware & H. Canal Co., 134 N.Y. 397 (1892).
2. “[i]n the absence of a statute expressly providing for the acquisition of a fee, or
of a deed from the owner expressly conveying the fee, when a highway is
established by dedication or prescription, or by direct action of the public
authorities, the public acquires merely an easement of passage, the fee title
remaining in the landowner” Bashaw v. Clark, 267 A.D.2d 681 (3d Dept 1999).
iii. SharedDriveways:
1. “A cross-easement or reciprocal easement over a driveway can be created by
deed or agreement in which each owner of a portion of a driveway grants the
other owner an easement over their respective portion so as to share the use of
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theentire driveway.” Capersino v. Gordon, 35 Misc. 3d 1222A (Sup. Ct.
Suffolk Co. 2012).
iv. WaterRights:
1. Examples:Todrawwater,obtainwater,laypipes,ortoaccess
abodyofwater
2. “a right to take water from a distant source might, by other and appropriate
kinds of verbiage, be so granted as to be appurtenant to specific lands separated
from the source of supply.” Cady v. Springfield Water Works Co., 134 N.Y. 118
3. “a true easement… to run a pipe through the Le Roy lands to carry the waters
from the Divines' lake to the Divines' mill lot.” Loch, Sheldrake Asso., Inc.
Supra.
v. Utilities:
1. StormDrains
2. SewerPipes
3. Electricalandtransmissionlines
4. Telephone/Cable
5. GasLines
vi. LightandAir:
1. Aneasementthatpermanentlyallowslightandairtoenterthe
windowsofabuildingfromanadjoininglot
2. Existonlybyexpressgrantorreservation
a. “We think the law is clear in this State that "if one grants a house
having windows looking out over vacant land, whether his own or
otherwise, he does not grant therewith any easement of light and air,
unless it be byexpress terms; it never passes by implication." De Baun
v. Moore, 32 A.D.397 aff’d 167 N.Y. 598 (1901).
3. Cannotbeimpliedlygrantedfromcircumstances,
a. Exceptions:
i. “…plaintiff relies upon the familiar and well-established rule
that a description bounding property upon a street or
avenue or referring to a map upon which the street or avenue
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is delineated amounts, as between the grantor and grantee, to a
dedication by the grantor of the bed of the street or avenue for
a street, if owned by him, and confers upon the grantee the
right to use it, and perpetual easements of light, air and
access over it, whether any portion of the bed of the street or
avenue be conveyed to him, or whether the fee of the whole of
it bereserved by the grantor.” Lewishon v. Lansing Co., 119
A.D. 393 (1st Dept 1907).
ii. “It would seem, therefore, that an easement of light and air
may be implied if found to be strictly necessary to the
beneficial use of the premises hired and if clearly shown to
be the intention of the parties. Accordingly, "An easement
will be implied and pass as an appurtenance only when
necessary to a reasonable use and enjoyment of the estate
conveyed. Mere convenience is not sufficient either to create
or to convey sucheasement" Harte v. Empire State Building
Corp., 30 Misc. 2d 665 (Sup. Ct. NY Co., 1961).
vii. PartyWalls:
1. “The paramount object for which a party wall is constructed is the maintenance
and support of the adjacent buildings. In this city it is also the custom in
constructing such walls between dwelling houses to place therein flues for use in
the adjoining buildings. But these are the only purposes, so far as our knowledge
extends, to which such walls are devoted. The easement of the owner of either
building extends only over so much of his neighbor's land as the party wall
stands upon, and such easement consists merely in the right to the support of the
wall and the presence of the flues which may be in it. It has been held that either
of the owners may increase the height of the party wall, provided such increase
can bemade without detriment to the strength of the wall.” De Baun v. Moore,
32 A.D. 397 aff’d 167 N.Y. 598 (1901).
viii. Aviation:
1. “…permanent easements for avigation purposes of the airspace over all of the
respective subject properties' land areas. Basically, the taking maps defined
planes above the properties and the said easements encompassed the airspace
above the planes. These individual planes were part of a larger, general
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avigation easement plane rising upward and outward from Republic's runway 14
at an angleof one foot up (vertical) for every 50 feet out (horizontal).” Kupster
Realty Corp. v. State of NY, 93 Misc. 2d 843 (Ct of Claims, 1978). [Republic
Airport and Republic Transportation Center, Farmingdale, Long Island-Townof
Babylon, County of Suffolk, State of New York]
ix. BurialPlots: 1. “While the purchaser of a cemetery lot does not acquire a title thereto in fee
simple, he becomes possessed of a property right therein which the law protects
from invasion. He has an easement for burial purposes therein, in accordance
with the usual custom prevailing in the locality, and this privilege carries with it
the right to erect tombstones and monuments in memory of the deceased, and to
protect them from injury and spoliation.” Oatka Cemetery Association Inc. v.
Cazeau, 242 AD 415 (4th Dept 1934).
2. “It has been decided many times, and frequently asserted by text writers, that the
heirs of a decedent at whose grave a monument has been erected, or the person
who rightfully erected it, can recover damages from one who wrongfully injures
or removes it, or by an injunction may restrain one who without right, threatensto injure or remove it, and this though the title to the ground wherein the grave
is, be not in the plaintiff but in another.” Mitchell v. Thorne, 134 N.Y. 536
(1892).
x. ConservationEasements:
"Conservationeasement"meansaneasement,covenant,restrictionorotherinterestinrealproperty,createdunderandsubjecttotheprovisionsofthistitlewhichlimitsorrestrictsdevelopment,managementoruseofsuchrealpropertyforthepurposeofpreservingormaintainingthescenic,open,historic,archaeological,architectural,ornaturalcondition,character,significanceoramenitiesoftherealpropertyinamannerconsistentwiththepublicpolicyandpurposesetforthinsection49‐0301ofthistitle,providedthatnosucheasementshallbeacquiredorheldbythestatewhichissubjecttotheprovisionsofarticlefourteenoftheconstitution.”EnvironmentalConservationLaw§49‐0303(1)§ 49-0305. Conservation easements; certain common law rules not applicable 1. A conservation easement may be created or conveyed only by an instrument which complies with the requirements of section 5-703 of the general obligations law and which is subscribed by the grantee. It shall be of perpetual duration unless otherwise provided in such instrument. …
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5. A conservation easement may be enforced in law or equity by its grantor, holder or by a public body or any not-for-profit conservation organization designated in the easement as having a third party enforcement right, and is enforceable against the owner of the burdened property. Enforcement shall not be defeated because of any subsequent adverse possession, laches, estoppel or waiver. No general law of the state which operates to defeat the enforcement of any interest in real property shall operate to defeat the enforcement of any conservation easement unless such general law expressly states the intent to defeat the enforcement of such easement or provides for the exercise of the power of eminent domain. It is not a defense in any action to enforce a conservation easement that: (a) It is not appurtenant to an interest in real property; (b) It can be or has been assigned to another holder; (c) It is not of a character that has been recognized traditionally at common law; (d) It imposes a negative burden; (e) It imposes affirmative obligations upon the owner of any interest in the burdened property, or upon the holder; (f) The benefit does not touch or concern real property; or (g) There is no privity of estate or of contract.
e. AffirmativeandNegativeEasementsakaAffirmativeandNegativeCovenants
i. NegativeEasement:
1. “A negative easement is one which restrains a landowner from making certain
use of his land which he might otherwise have lawfully done but for that
restriction ( Trustees of Columbia Coll. v Lynch, 70 NY 440). …If established
expressly, a negative easement must comply with the requisites of the Statute of
Frauds.” Huggins v. Castle Estates, Inc. 36 NY 2d 427 (1975).
a. Statute of Frauds: Basically a rule that says that a contract (lease,
agreement, promise, undertaking) incapable of being fully preformed
within one year of its creation must be in writing. Recognizes that
verbal contracts are enforceable, if they are capable of being fully
preformed within a year.
i. General Obligations Law §5-701 Agreements Required to be
in writing.; and
ii. General Obligations Law §5-703 Conveyances and Contracts
concerning Real Property must be in writing.
2. Examples:
a. Residentialpurposesonly,Huggins,Supra
b. “The restrictive covenant at issue provides that "[a]ny dock, pier or
land projection constructed in or over the lake shall be no closer than
[15] feet from the adjoining property line, and no such structure shall
be built with sides." Ford v. Rifenburg, 94 AD3d 1285 (3rd Dept., 2012)
ii. AffirmativeEasement:
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1. “It has long been the rule in this State, and it finds expression in the leading case
of Miller v. Clary (210 N.Y. 127), that "a covenant to do an affirmative act, as
distinguished from [one] merely negative in effect, does not run with the land so
as to charge the burden of performance on a subsequent grantee." Nicholson v.
300 Broadway Realty Corp. 7 N.Y. 2d 240 (1959).
a. Exceptions:
i. “The burden of affirmative covenants may be enforced against
subsequent holders of the originally burdened land whenever
it appears that (1) the original covenantor and covenantee
intended such a result, (2) there has been a continuous
succession of conveyances between the original covenantor
and the party now sought to be burdened and (3) the covenant
touches or concerns the land to a substantial degree.”
Nicholson, Supra.
2. Examples:
a. "Saidpartyofthefirstpartshallkeepsaidwheelinsaidmillin
goodconditionandoperatethesameeconomicallyandconstruct
andmaintainsaidshaftofproperdimensionstothewestlineof
saidlot,affordingsaidpartyofthesecondpartagoodconnection
therewithathiswestline."Millerv.Clary210N.Y.127(1913)the
Courtheld:“In that view, the covenant to construct and maintain the
shaft was the personal undertaking of the original grantor and does not
run with the land or create an equitable liability on the part of the
defendants.” Id.
b. "tofurnishsteamheat"tothebuildingonhispropertyand"to
furnishandmaintainallnecessarysteampipesandreturnpipesfor
thatpurpose"NicholsonSupra.TheCourtheldthecovenant
touchedandconcernedthelandtoasubstantialdegreeandwas
enforceable.Id.
III. CreationandExistenceofEasements:
a. ExpressEasements:“inwriting.”ExpressEasementmeansthereissome
writing/document/deed/agreementthatstatesexactlywhattheeasementor
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understandingisbetweentheparties.Theinterpretationofanexpress
easementisaquestionoflaw.
i. GrantorandGrantee
1. Signed,SealedandDelivered.
2. GeneralObligationsLaw§ 5-703. Conveyances and contracts concerning
real property required to be in writing1. An estate or interest in real property, other than a lease for a term not exceeding one year, or any trust or power, over or concerning real property, or in any manner relating thereto, cannot be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the person creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing….
3. Anexampleof“byoperationoflaw”whentherearejoint
tenantswitharightofsurvivorshiportenantsbytheentirety
andoneofthetenantsdies,theproperty/interestisconveyed
byoperationoflawtothesurvivingtenantwithouttheneed
foraseparatedeed.
4. “Subscribedbythepersoncreating”=signedand
acknowledged.Incontractstheterm“Signedbythepartytobe
charged”issometimesusedinstead.
5. Example:McColganv.Brewer,84A.D.3d1573(3dDept2011)
“The right-of-way agreements provided, in relevant part, that the owner of the property "does hereby grant, release and convey unto [Klepeis] a perpetual and unobstructed right-of-way and easement 50 feet in width over said premises[,which] shall at all times hereafter be kept open and unobstructed as a highway for the use and benefit of the properties owned by the parties hereto, as well as other parties, and the owners and occupants thereof, as a means of ingress and egress, by foot or vehicle." Here, Klepeis is the only grantee in the agreements and Kelley's involvement is limited to that of a grantor of a right-of-way over her own property. As neither Kelley nor her successors in interest were grantees with respect to the right-of-way agreements with the other landowners, such agreements do not benefit the landlocked portion of plaintiff's property as a matter of law.
6. Documentconveyinganinterestinrealpropertymusthave:
a. “a specific grantor,
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b. a specific grantee,
c. a proper designation of the property,
d. a recital of the consideration, and….
e. operative words….
f. [be] acknowledged before delivery, and
g. its execution and delivery [must be] attested by a subscribing witness.”
Cohen v. Cohen 188 A.D. 933(2d Dept 1919).
ii. WrittenInstrument
1. Will
a. InCohenv.Cohen,Supra,ahusbandtriedtoconvey
propertytohiswifebyaletter,theCourtsaidnota
properconveyancebecauseitlackedtheelements
above.
b. “Everyestateinpropertymaybedevisedor
bequeathed.”EstatesPowersandTrustsLaw(EPTL)§
3‐1.2Whatpropertymaybedisposeofbywill.
2. Agreement
a. EasementAgreementTemporary,Permanent,fora
periodofyears.
3. Deed(grantorreservation)
a. Grant:EasementrightscanbegrantedbyaGrantorto
theGranteewithinthedeed
i. “Togetherwithaneasement….”
b. Reservation:Easementrightscanberetainedbythe
Grantoroverlandsconveyed
i. “A reservation creates a new right out of the subject of the
grant, and is originated by the conveyance.” Mitchell v.
Thorne, 134 N.Y. 536 (1892)
ii. “subjecttoaneasementreservedforthe
grantor…”
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c. Exception:AnEasementcanbeexcludedfroma
conveyance.
i. “By an exception some portion of the subject of the grant is
excluded from the conveyance, and the title to the part so
excepted remains in the grantor by virtue of his original title.”
Mitchell, Supra.
d. Cannotgrantaneasementtoyourselfoveryourown
lands
i. An individual cannot grant or have an easement over land they
own “because all the uses of an easement are fully
comprehended in the general right of ownership.” Will v.
Gates, 89 NY2d 778 (1997). There is no servient or dominant
estate, they have merged by the unity of title in a common
owner. Id. at 784.
e. Cannotcreateaneasementoverlandsyoudonot
own/Cannotreserveaneasementoverlandsyouno
longerown.
i. “…having already conveyed the annex parcel, he could not
”reserve “ in the deed to defendant's predecessor-in-interest an
easement appurtenant to the annex parcel for the benefit of
plaintiff's predecessor-in-interest.” Estate of Thomas v. Wade,
69 N.Y.2d 570 (1987).
f. Cannotcreateaneasementinfavorofathirdparty,not
apartytothedeed.
i. “A party cannot reserve an easement over another's property in
favor of a third party who is not a party to the agreement.”
McColgan, Supra.
g. Theappurtenanceclauseindeeds:“Togetherwiththe
appurtenancesandalltheestateandrightsoftheparty
ofthefirstpartinandtosaidpremises…”
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i. “The rule of the common law on this subject is well settled.
The principle is, that where the owner of two tenements sells
one of them, or the owner of an entire estate sells a portion,
the purchaser takes the tenement, or portion sold, with all the
benefits and burdens which appear, at the time of the sale, to
belong to it, as between it and the property which the vendor
retains. This is one of the recognized modes by which an
easement or servitude is created. No easement exists so long
as there is a unity of ownership, because the owner of the
whole may, at any time, rëarrange the qualities of the several
parts. But the moment a severance occurs, by the sale of a
part, the right of the owner to redistribute the properties of the
respective portions ceases; and easements or servitudes are
created, corresponding to the benefits and burdens mutually
existing at the time of the sale. This is not a rule for the benefit
of purchasers only, but is entirely reciprocal. Hence, if, instead
of a benefit conferred, a burden has been imposed upon the
portion sold, the purchaser, provided the marks of this burden
are open and visible, takes the property with the servitude
upon it. The parties are presumed to contract in reference to
the condition of the property at the time of the sale, and
neither has a right, by altering arrangements then openly
existing, to change materially the relative value of the
respective parts.” Lampman v. Milks, 21 N.Y. 505 (1860)
ii. “An easement appurtenant occurs when the easement (1) is
conveyed in writing, (2) is subscribed by the creator, and (3)
burdens the servient estate for the benefit of the dominant
estate (internal citations omitted). The easement passes to
subsequent owners of the dominant estate through
appurtenance clauses, even if it is not specifically mentioned
in the deed. (citations omitted)” Djoganopolous v. Polkes, 95
A.D.3d 933 (2d Dept 2012).
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b. ImpliedEasements:Notcreatedbyadeed/document/writingbutare
impliedfromthecircumstances.Alltypesrequiretherebeacommon
grantorbetweentheallegeddominantestateandallegedservientestatefor
aneasementtobeimpliedacrosstheservientestate.
i. Formerpublichighway
1. CommonGrantorboundspropertyalongthecenterlinesofa
publicstreetorotherwiseusesPublicHwyindescription
2. CommonGrantorownsthebedofthepublicroad
3. CommonGrantorimpliedlyhasgrantedhisgranteesaprivate
easementofaccessunderlyingthepublichighway
4. WhenorifthePublicHighwayisabandonedordiscontinued,
theprivateeasementsofaccesswhichwereimpliedlyor
expresslygrantedallowfortheperpetualenjoymentofthe
roadforthegranteeandhissuccessors.
a. “privateeasementofaccessarisesinordertoinsurethatagrantee
orhissuccessorsintitlearenotdeprivedoftheuseoftherightof
wayexistingatthetimetitle(tothelot)wasacquired.” Kent v.
Dutton, 122 AD2d 558 (4th Dept. 1986)
5. “Thatprivateeasementsmaybeappurtenanttothepropertyabuttingupon
apublichighwaymustbeconceded.Theseeasementsoftheabutting
landownerareinadditiontosuchashepossessesasoneofthepublic,to
whoseusethepropertyhasbeensubjected.Theyareindependentofthe
publiceasementand,whetherarisingthroughexpressorimpliedgrant,are
asindestructible,intheirnature,bytheactsofthepublicauthorities,orof
thegrantorofthepremises,asistheestate,whichisthesubjectofthe
grant.”Hollowayv.Southmayd.139N.Y.390(1893).
ii. Pre‐existinguse
1. “Unity and subsequent separation of title,
2. the claimed easement must have, prior to separation, been so long continued and
obvious as to show it was intended to be permanent, and
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3. the use must have been necessary to the beneficial enjoyment of the dominant
estate at the time of the conveyance.” Four S. Realty Co. v. Dynko, 210 A.D.2d
622 (3d Dept 1994).
a. “The necessity required for an implied easement based upon
preexisting use is only reasonable necessity, in contrast to the absolute
necessity required to establish an implied easement by necessity.” Id.
iii. Necessity
1. “….that there was a unity and subsequent separation of title, and
2. that at the time of severance an easement over defendant's property was
absolutely necessary.” Stock v. Ostrander, 233 A.D.2d 816 (3d Dept .1996).
3. “As to the second element, plaintiffs adduced proof that, upon severance, their
parcel became landlocked by other properties with no access to a public
highway due to the nature of the surrounding terrain, except via the dirt road
across the lands owned by Ostrander, defendant's predecessor in title. Thus, the
easement was absolutely necessary.” Stock, Supra
4. “To establish an easement by necessity, plaintiff must, by clear and convincing
evidence, show that its property was at one time titled under the same deed as
defendants' and, when severed, plaintiff's parcel became landlocked.” Lew
Beach co. v. Carlson, 77 A.D.3d. 1127 (3d Dept., 2010).
5. “…access to their property by a navigable waterway would defeat their
entitlement to easements by necessity.” Foti v. Noftseir, 72 A.D.3d. 1605 (4th
Dept., 2010).
iv. PaperStreets
1. “It is well settled that “ ‘when property is described in a conveyance with
reference to a subdivision map showing streets abutting on the lot conveyed,
easements in the private streets appurtenant to the lot generally pass with the
grant’ ” (citations omittied). Nonetheless, whether an implied easement was in
fact created depends on the intention of the parties at the time of the conveyance
(citations omitted). This requires proof that the deed from the original
subdividing grantor referred to the subdivision map or the abutting paper street
(citations omitted). DeRuscio v. Jackson, 164 A.D.2d 684 (3d Dept., 1991).
2. Althoughtheintentionofthegrantoristobedeterminedinlightofallthe
circumstances,themostimportantindicatorsofthegrantor'sintentarethe
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appearanceofthesubdivisionmapandthelanguageoftheoriginaldeeds.
Fischerv.Liebman,137A.D.2d485(2dDept.,1988).
3. “The record demonstrates that the intent of the parties' common grantor was to
provide a right of passage from the subject lots to the east (ultimately leading to
a main road) with no intent, express or implied, to provide a right of passage
along the paper road to the west. TO BE SURE, MAPS FROM 1900 and 1915
do clearly depict a right-of-way (i.e., the paper road) on the southern border of
approximately 70 specifically enumerated “cottage lots,” including the lots at
issue here. The record reveals, however, that this paper road was never opened.
Instead, the route entailing “the road to Onchiota” was used by owners of lot
108 and all lots to its east to gain access to the main road (see n. 2, supra ).
Indeed, as of 1900 and for the next 80 years, no public road even existed to the
west. It was not until 1980 that a public road (Tebbutt Road) was opened to the
west of these lots.” Busch v. Harrington, 63 A.D.3d 1333 (3d Dept., 2009).
4. SubdivisionmapshavetobefiledwiththeCountyClerk.Town
Law279;VillageLaw§7‐732;GeneralCitiesLaw§34.
c. PrivatePrescriptiveEasements:
i. Prescriptionissimilartoadversepossession,ithasthesamecommon
lawelements,howeverprescriptionresultsinaneasementrather
thantitletoland. 1830 Madison Ave. LLC v. 17 East Owners Corp., 2003 NY Slip
Op 51309(U) (Sup. Ct. NY Co., 2003).
ii. Thestatutoryperiodis10years.CivilPracticeLawandRules(CPLR)
§212(a)Possessionnecessarytorecoverrealproperty.
Between1959and1963itwas15years.
Priorto1959thestatutoryperiodwas20years.
iii. “In other words, as ‘the enjoyment of easements lies in use rather than in possession’, the
only physical conduct necessary for their acquisition by prescription is ‘making use’ of a
portion of another’s land, (citations omitted), and one claiming a right of way by
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prescription is not required to prove that the way was enclosed, cultivated or improved. In
short, the prescribed statutory manifestations of adverse possession as one court wrote
about section 372 of the Code of Civil Procedure, the predecessor of section 40 can have
‘no application to the case of an easement, as of passage. DiLeo v. Pecksto Holding
Corp., 304 N.Y.505 (1952).
iv. “However, not every use of another’s land gives rise to an easement. It is also requisite
that the use be adverse, open and notorious, continuous and uninterrupted for the
prescriptive period.” Id.
v. “…this court has consistently held, ‘Under ordinary circumstances, an open, notorious,
uninterrupted, and undisputed use of a right of way is presumed to be adverse under
claim of right and casts the burden upon the owner of the servient tenement to show that
the user was by license’ DiLeo Supra.
vi. But where the use is not inconsistent with the rights of the owner and the general public,
in the absence of some decisive act on the part of the claimants, indicating a use separate
and exclusive from the general use, that presumption will not apply…. Common use
negates the concept of a presumption in favor of an individual, and the use of a [right of
way with members of the general public militates against the establishment of an
easement by prescription, because the use is not adverse. Hassinger v. Kline, 110 Misc.
2d. 147 (Sup. Ct. Rockland Co., 1981).
vii. The law is that an easement for light and air cannot be acquired byprescription. Cohan v
Fleuroma, Inc., 42 A.D.2d 741 (2d Dept 1973).
viii. “Seasonal use of the roadway will not prevent plaintiff from establishing a prescriptive
easement, as long as such use was continuous and uninterrupted and commensurate with
appropriate existing seasonal uses.” Miller v. Rau, 193 A.D.2d. 868 (3d Dept., 1993).
ix. “…proof of an exclusive, continuous, uninterrupted, open and notorious user under a
claim of right with the knowledge and acquiescence of the owners of the servient
tenement for a period of upwards of twenty years, authorizes the presumption of a grant
of the interest so exercised and enjoyed.” Nicholls v. Wentworth, 100 N.Y. 455 (1885).
d. PublicPrescriptiveEasements:
i. Prescriptiveor“User”Highways
1. N.Y. Highway Law § 189. Highways by use.
“All lands which shall have been used by the public as a highway for the period
of ten years or more, shall be ahighway, with the same force and effect as if it
had been duly laid out and recorded as a highway….”
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2. Section 189 and its predecessor statutes have been on the books since 1797.
3. “Butthemerefactthataportionofthepublictraveloveraroadfortwenty
years[nowtenyears]cannotmakeitahighway;andtheburdenofmaking
highwaysandsustainingbridgescannotbeimposeduponthepublicinthat
way.Theremustbemore.Theusermustbelikethatofhighwaysgenerally.
Theroadmustnotonlybetraveledupon,butitmustbekeptinrepairor
takeninchargeandadoptedbythepublicauthorities.Wethinkallthisis
impliedinthewords'usedaspublichighways.'Speirv.TownofNew
Utrecht,121NY420(1890).
4. PublicUse+PublicMaintenance(fortheStatutoryPeriod)=
Prescriptiveor“User”Highway
5. Village Law §6-626 Streets by prescription
All lands within the village which have been used by the public as a street for
ten years or more continuously, shall be a street with the same force and effect
as if it had been duly laid out and recorded as such.
6. NoanalogousstatuteintheCityLaw.SeeCityofNewYorkv.
Gounden,2013N.Y.Misc.LEXIS689(QueensCo.,Jan.22,2013)
7. “The general rule is that when the language of the statute will bear a
construction which will leave the fee in the landowner, that construction will be
preferred. If the title to land in the bed of a highway depends upon
presumptions, the general rule seems applicable that only an easement was
taken.” Mott v. Eno, 181 NY 346 (1905).
ii. Prescriptiveeasementforotherpublicpurposes:
1. usuallyallowed,usuallyacquiredbythepublicauthoritywhen
theycandemonstratetheelementstoacquireaprivate
prescriptiveeasement.SeeZutt v. State of NY, 50 A.D.3d 1133 (2d Dept,
2008). [whether State acquired a prescriptive easement in a drainage ditch]
iii. Limitation:
1. RealPropertyLaw§261Maintenanceoftelegraphorotherelectricwiresraisesnopresumptionofgrant.Wheneveranywireorcableusedforanytelegraph,telephone,electriclightorotherelectricpurpose,orforthepurposeofcommunicationotherwisethanbytheaidofelectricity,isorshallbeattachedto,ordoesorshall
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extenduponoroveranybuildingorland,nolapseoftimewhatevershallraiseapresumptionofanygrantof,orjustifyaprescriptionofanyperpetualrightto,suchattachmentorextension.
e. EquitableEasements:i. —“…a grant of an easement by an instrument which is unacknowledged and unattested
may nevertheless support equitable rights and interests in property which, when
established by possession and improvements, are effective against a subsequent purchaser
of the servient estate who takes with actual knowledge of the possession and
improvements.” Kienz v. Niagara Mohawk Power Corp., 41 A.D.2d 431 (4th Dept 1973)
See also: Loughran v. Orange and Rockland Utilities, Inc., 209 A.D.2d 917 (3d Dept
1994)
f. PrivateRoadCondemnation:Section300etseq.oftheHighwayLaw
i. New York Highway Law § 300. Private road An application for a private road shall be made in writing to the town superintendent of the town in which it is to be located, specifying its width and location, courses and distances, and the names of the owners and occupants of the land through which it is proposed to be laid out.
ii. Does not require a metes and bounds survey, but a survey would satisfy this provision. Satterly v. Winne, 4. N.Y. 185 (1886) (Ulster Co., Town of Woodstock).
iii. § 301. Jury to determine necessity and assess damages The town superintendent to whom the application shall be made shall appoint as early a day as the convenience of the parties interested will allow, when, at a place designated in the town, a jury will be selected for the purpose of determining upon the necessity of such road, and to assess the damages by reason of the opening thereof.
iv. § 302. Copy application and notice delivered to applicantSuch town superintendent shall deliver to the applicant a copy of the application, to which shall be added a notice of the time and place appointed for the selection of the jury, addressed to the owners and occupants of the land.
v. § 303. Copy and notice to be servedThe applicant on receiving the copy and notice shall, on the same day, or the next day thereafter, excluding Sundays and holidays, cause such copy and notice to be served upon the persons to whom it is addressed, by delivering to each of them who reside in the same town a copy thereof, or in case of his absence, by leaving the same at his residence and upon such as reside elsewhere, by depositing in the postoffice a copy thereof to each, properly enclosed in an envelope, addressed to them respectively at their postoffice address, and paying the postage thereon, or, in case of infant owners, by like service upon their parent or guardian.
vi. §§304-306 Relate to selecting and paying the jurors.
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vii. § 307. Their verdict The jury shall view the premises, hear the allegations of the parties, and such witnesses as they may produce, and if they shall determine that the proposed road is necessary, they shall assess the damages to the person or persons through whose land it is to pass, and deliver their verdict in writing to the town superintendent.
viii. “The Legislature evidently considered this method of laying out private
roads the work of laymen rather than lawyers.” In Re Bell, 131 Misc. 734
(Sup. Ct. St. Lawrence Co., 1928)
ix. [A]n ancient and archaic provision of the Highway Law which is unique
and rarely utilized. Preserve Assoc. v. Nature Conservancy, Inc. 934
N.Y.S.2d 678 (Sup. Ct. Franklin Co., 2011). November 28, 2011
x. Limitation:
1. Cannot be used to acquire an easement for utilities, it is strictly for
ingress and egress. Preserve Assoc., Supra.
2. Cannot be used against Public Property held in a governmental
capacity (for a public purpose). See Leonard v. Masterson, 70
A.D.3d 697 (2d Dept 2010).
IV. LocationandWidthofEasements:
a. Generally
i. Byagreement/deed/otherwriting
1. “Where a right-of-way is granted over a stated width and does not state the
express purpose for which it is given, the circumstances of the case will
determine "whether the reference is to the width of the way or is merely
descriptive of the property over which the grantee must have such a way as may
be reasonably necessary" Serbalik v. Gray, 268 A.D.2d 926 (3d Dept. 2000).
2. “Plaintiff's property is landlocked by defendant's property resulting in both
deeds specifying that plaintiff holds "a right of way two rods (33 feet) wide
along the shore of the aforesaid swamp to the highway"…. Upon our review, we
find that the presently constituted driveway, measuring 12 feet at its widest and
9 feet 8 inches at its narrowest point, has provided and continues to provide a
reasonable and convenient means of ingress and egress, fulfilling the purpose for
which it was created.” Serbalik Supra.
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3. In this case, the trial court properly concluded that the easement contained in the
plaintiffs' deed, providing for "ingress and egress over a 30-foot right of way"
over a portion of the defendant's property should be limited to the 12-foot paved
roadway, since the plaintiffs failed to establish that roadway was inadequate for
the expressly stated purpose intended by the grantee in creating the easement.
Minogue v. Kaufman, 124 A.D. 2d 791 (2d Dept. 1986).
4. “Here, it is undisputed that defendants obtained an easement of ingress and
egress by prescription. Contrary to plaintiff's argument, the judgment awarding
that easement expressly defined it by reference to a survey map showing the
precise path of the easement in detail, including exact distances and courses and
with reference to monuments, adjacent properties, highwater lines and other
landmarks.” Estate Court, LLC v. Schnell, 49 A.D.3d 1076 (3d Dept., 2008).
ii. PracticalLocationorexistingway:
1. “[o]nce an easement is definitively located, by grant or by use, its location
cannot be changed by either party unilaterally” Clayton v. Whitton, 233 A.D.2d
828.
2. In Lewis v. Young, supra, the Court concluded that a deed conveyed to the
easement holder containing the right to “the perpetual use, in common with
others, of [the burdened landowner's] main driveway, running in a generally
southwesterly direction”(id. at 446, 682 N.Y.S.2d 657, 705 N.E.2d 649
[emphasis omitted] ) did not establish a fixed location, such as would be shown
by, for example, a specific metes and bounds description (see generally Green v.
Blum, 13 A.D.3d 1037, 1038, 786 N.Y.S.2d 839 [2004] ). Instead, the Court
held that the “provision manifests an intention to grant a right of passage over
the driveway-wherever located-so long as it meets the general directional sweep
of the existing driveway” Chekijian v. Mans, 34 AD3d 1029 (3d Dept 2006).
3. “The Russell’s present day driveway is the only feasible route by which
defendants can access the old road that runs through the southwestern part of the
Russell’s property to the remaining portion of the Schneider property…”
Russell v. Adams v. Schneider, Index No. 10-1707; 11-0988 Supreme Court,
Greene Co., April 22, 2013 Hon. Roger D. McDonough presiding.
iii. UndefinedLocation:
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1. “The courts may exercise their equitable powers to locate an easement where the
parties have failed to specifically designate the route.” Castle Associates v.
Schwartz, 63 A.D.2d 481 (2d Dept 1978).
iv. WidthofEasement:
1. WidthStated:havetodeterminewhetheritwasdescriptiveof
thelandoverwhichthewayistobelocatedorifthewidthis
thewidthoftheway.
2. Nowidthstated = “
a. Necessary and convenient for the purpose for which it was created.”
Mandia Supra.
b. “Despite this preexisting use of the driveway, the deed creating the
easement did not specify or narrow the width, supporting the
conclusion that the deeded easement was intended to conform to the
existing driveway. Under these circumstances, and giving due
deference to Supreme Court's credibility determinations (see Eddyville
Corp. v Relyea, 35 AD3d 1063, 1066, 827 NYS2d 315 [2006]) , we
will not disturb that court's decision that the driveway easement is 26
feet wide.” Albright v. Davey, 68 A.D.3d 1490 (3d Dept 2009).
3. Widthusedduringtheprescriptiveperiod
a. Prescriptive Highwaywidth is the traveled track, shoulders, and
ditches to the outer upside of the ditch. Van Allen v. Kinderhook, 47
Misc 2d 955 (Sup. Ct. Columbia Co., 1965) The land necessary and
incidental thereto for highway purposes. Nikiel v. City of Buffalo, 7
Misc. 2d 667 (Sup. Ct. Erie Co., 1957)
b. Private Easement by Prescription: width that was used for the statutory
period.
i. “In the case of a prescriptive easement, "the right acquired is
measured by the extent of the use" ( Am. B. N. Co. v N. Y. El.
R. R. Co., 129 NY 252, 266) . Thus, plaintiffs acquired an
easement only equal in width to that portion of the land
actually used during the prescriptive period. Here, although a
survey map showing a 50-foot-wide "right-of-way" was
admitted on stipulation, no evidence was offered concerning
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the width of the parcel actually used. The issue, therefore,
cannot be resolved on thisrecord.” Reiss v. Maynard, 170
A.D.2d 992 (4th Dept. 1991).
V. IntroductiontotheUseofEasements:
a. RightsoftheParties
i. OwneroftheLand:ServientEstateHolder
1. “A landowner owes a duty to another on his land to keep it in a reasonably safe
condition, considering all of the circumstances including the purpose of the
person's presence and the likelihood of injury.” Macey v. Truman, 70 N.Y.2d
918 (1987).
2. “..the rule articulated in Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564,
352 N.E.2d 868 [1976]. There, abolishing the distinctions among trespassers,
licensees and invitees, we held that New York landowners owe people on their
property a duty of reasonable care under the circumstances to maintain their
property in a safe condition.” Tagle v. Jakob, 97 NY2d 165 (2001).
3. Theright: "to have the natural condition of the terrain preserved, as nearly as
possible" (49 NY Jur 2d, Easements §128) and "to insist that the easement
enjoyed shall remain substantially as it was at the time it accrued, regardless of
whether benefit or damage will result from a proposed change." Lopez v. Adams,
69 A.D.3d 1162 (3d Dept 2010).
4. Cannotinterferewiththeuseoftheeasementbytheeasement
holder
a. “…as the owner of the land, has the right to use it in any way that he
sees fit, provided he does not unreasonably interfere with the rights of
the plaintiff. All that is required of him is that he shall not so contract
the alley-way, either vertically or laterally, as to deprive the plaintiff of
a reasonable and convenient use of the right of passing to and fro.”
Grafton v. Moir, 130 N.Y. 465 (1892).
b. “Ordinarily, a servient owner has no duty to maintain an easement to
which its property is subject. Indeed, a servient owner has a “passive”
duty to refrain from interfering with the rights of the dominant owner.”
Tagle v. Jakob, 97 NY2d 165 (2001)
5. Landownercan:
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a. “a landowner burdened by an express easement of ingress and egress
may narrow it, cover it over, gate it or fence it off, so long as the
easement holder's right of passage is not impaired.” Lewis v. Young, 92
NY2d 443 (1998)
6. Landownermay:
a. “In the absence of a demonstrated intent to provide otherwise, a
landowner, consonant with the beneficial use and development of its
property, can move that right of way, so long as the landowner bears
the expense of the relocation, and so long as the change does not
frustrate the parties' intent or object in creating the right of way, does
not increase the burden on the easement holder, and does not
significantly lessen the utility of the right of way”. Lewis Supra
b. Unilateralrelocationbylandowneronlywhenthe
easementisnotfixedinlocationorinotherwordsis
undefined.
c. In Lewis v. Young, supra, the Court concluded that a deed conveyed to
the easement holder containing the right to “the perpetual use, in
common with others, of [the burdened landowner's] main driveway,
running in a generally southwesterly direction”(id. at 446, 682
N.Y.S.2d 657, 705 N.E.2d 649 [emphasis omitted] ) did not establish a
fixed location, such as would be shown by, for example, a specific
metes and bounds description (see generally Green v. Blum, 13 A.D.3d
1037, 1038, 786 N.Y.S.2d 839 [2004] ). Instead, the Court held that the
“provision manifests an intention to grant a right of passage over the
driveway-wherever located-so long as it meets the general directional
sweep of the existing driveway” Chekijian v. Mans, 34 AD3d 1029 (3d
Dept 2006).
d. “speed bumps” may have “unlawfully interfered with the plaintiff's
right to utilize the easement.” J.C. Tarr Q.P.R.T. v. Delsener, 70
A.D.3d 774 (2d Dept., 2010).
ii. OwneroftheEasement:DominantEstateHolder
1. “ ‘A right of way along a private road belonging to another person does not give
the [easement holder] a right that the road shall be in no respect altered or the
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width decreased, for his right is merely a right to pass with the convenience to
which he has been accustomed.’ ” Grafton, Supra.
2. “One does not possess or occupy an easement or any other incorporeal right. An
easement derives from use, and its owner gains merely a limited use or
enjoyment of the servient land.” Di Leo v Pecksto Holding Corp. 304 NY
505 (1952).
3. Canmaintain,butcannotimprovetheeasement
a. In light of the defendants' flagrant abuse of their rights under the
easement, we find that the trial court did not err in requiring the
defendants to restore the roadbed to its prior condition.” Mandia v.
King Lumber Co., (Where the Lumber company had widened the ROW
to 50 feet and paved it.)
4. Cannotoverburdentheeasement
a. EasementHolderisnotpermittedto:"materially increase the
burden of the servient estate[s] or impose new and additional burdens
on the servient estate[s]" Solow v Liebman, 175 AD2d 121 (2d Dept
1991).
b. “However, the record further establishes, as the trial court found, that
the plaintiffs impermissibly expanded the dimensions of the easement
beyond the 10-foot width that existed in 2001 and erected a gate and a
fence on the defendants' property. Therefore, the plaintiffs must remove
the gate and the fence, and they must further restore the area beyond
the 10-foot width of the easement to its original condition. Vitiello v.
Merwin, 87 A.D.3d. 632 (2d Dept., 2011).
c. However:
i. “Where the nature and extent of the use of the easement is, as
here, unrestricted, the use by the dominant tenement might, of
course, be enlarged or changed.” McCullough v. Broad
Exchange Co., 101 AD 566 (1st Dept., 1905)[easement for
“the mutual advantage of all the property” partitioned and
conveyed the open area “shall be forever left as an open space,
and shall be unencumbered by any erections, except such
walks as now cross the same, for the purpose of giving light
and air and ingress and egress from all the premises herein
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described; said open spaces as they now exist shall be
maintained in good order and kept in good condition at the
joint and equal expense of all the parties hereto.”]
ii. TheissueinMcColloughwasbringingincoal
overtheeasementtouseinabuildingthatwas
partiallyonthedominanttenementandpartially
not.
d. Cannotinstallutilities,parkvehiclesorplanttreesalong
aroadwayintheeasementarea,iftheeasementisfor
ingressandegress.
i. “The easement here specifically granted plaintiffs the right of
ingress and egress. While plaintiffs argue that the fence and
landscaping on the western side of the driveway impede their
ability to use the easement to the fullest extent because it
prohibits parking along the side of the driveway, Supreme
Court correctly determined that parking was not a proper use
of the easement.” Sambrook v. Sierocki, 53 AD3d 817 (3d
Dept., 2008).
ii. “We further agree with the trial court that nothing in the
language of the grant suggests that the plaintiffs had a broad
right to use the entire 30-foot parcel for another purpose such
as landscaping the strips of grass surrounding the roadway on
either side.” Minogue v. Kaufman, 124 AD2d 791 (2d Dept
1986)
5. CannotusetheEasementtobenefitparcelsotherthanthe
Dominantparcel.(nopiggy‐backinganeasement)
a. “In any event, “the owner of the dominant tenement may not subject
the servient tenement to servitude or use in connection with other
premises to which the easement is not appurtenant (Williams v. James,
L.R. 2 C.P. 577)” Hunt v. Pole Bridge Hunting Club, Inc., 219 A.D.2d
618 (2d Dept., 1995).
6. Thedominantestateholdercanusetheeasementascanhis
agents,servants,employeesandinvitees.
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7. Iftheeasementis“incommonwithothers”thentheeasement
isnotexclusiveandtheholdermustnotimpairtherightsof
theothereasementholdersortrytoprecludeothereasement
holders’use
a. “A private individual, engaged in improving streets for the benefit or
convenience of his own property, cannot cut down the grade of an
existing street to the detriment of an abutting owner. If the cutting of
the grade impairs the abutting owner's right of access to his property,
his consent is necessary under such circumstances, as he may resist a
projected improvement by his neighbor which he could not resist if
undertaken by the public authorities. A party cannot impair his
neighbor's easement in a street and force what he calls a benefit upon
him against his will.” Cunningham v. Fitzgerald, 138 N.Y.165 (1893).
b. “A co-owner of an easement in common, including easements of way
held in common, must not interfere with the reasonable use of the
easement by his or her co-owners, or make alterations that will render
the easement appreciably less convenient and useful to any one of the
cotenants.” Butts v. Moreno, 24 Misc.3d 1230(A) (Sup. Ct. Kings Co.,
2009).
1. Liableforinjuriesthatoccurduringmaintenanceofthe
easement.
8. “Here, the injury resulted not from any unsafe condition defendant [landowner]
left uncorrected on his land, but as a direct result of the course plaintiff and his
companions decided to pursue in attempting to dislodge the marked tree. Under
these circumstances, the law imposed no duty on defendant as landowner to
protect plaintiff from the unfortunate consequences of his own actions. Nor, in
the absence of some showing that defendant's conduct in designating an area of
his land for cutting and in marking the trees was causally related to the accident,
can he be held liable to plaintiff on the theory that his conduct was negligent.”
Macey v. Truman, 70 N.Y.2d 918 (1987).
b. Maintenance,Repairs&Improvements
i. MaintenanceandRepairs
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1. ServientEstateHolderhasnodutytomaintainthe
roadway/easementfortheDominantEstateHolder
2. “Supreme Court correctly found that defendants' right to use the road for access
included the right to carry out work as necessary to reasonably permit the
passage of vehicles and, in so doing, to "not only remove impediments but
supply deficiencies in order to construct [or repair] a suitable road. (internal
citations omitted) However, defendants' rights to make lawful and reasonable
use of their easements were limited to those actions "necessary to effectuate the
express purpose of its easement" Lopez v. Adams, 69 A.D.3d 1162 (3d Dept
2010).
3. “As the dominant owners, defendants are responsible for maintaining and
repairing the roadway and, in the absence of an agreement to do so, plaintiffs are
not obligated to make repairs or contribute to their cost.” Lopez Supra citing to
Tagle v. Jakob, 97 NY2d 165 (2001)
ii. Improvements
1. Theservientlandownerhastheright: "to insist that the easement
enjoyed shall remain substantially as it was at the time it accrued, regardless of
whether benefit or damage will result from a proposed change." Lopez v. Adams,
69 A.D.3d 1162 (3d Dept 2010).
2. OncetheEasementisestablished,itcannotbeimproved
beyondthatcondition.
c. AlterationandRelocationoftheEasement
i. “In the absence of a demonstrated intent to provide otherwise, a landowner, consonant
with the beneficial use and development of its property, can move that right of way, so
long as the landowner bears the expense of the relocation, and so long as the change does
not frustrate the parties' intent or object in creating the right of way, does not increase the
burden on the easement holder, and does not significantly lessen the utility of the right of
way”. Lewis Supra
ii. As noted in Lewis v. Young, supra, relocation is not appropriate for even an undefined
easement when it frustrates the purpose of the easement's creation, increases the easement
holder's burden or “significantly lessen[s] the utility of the right of way”(id. at 452, 682
N.Y.S.2d 657, 705 N.E.2d 649). Chekijian v. Mans, 34 AD3d 1029 (3d Dept 2006).
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iii. “ Indeed, Vilardo's construction on lot 15 appears to preclude relocation of the right-of-
way to any other part of lot 15, and Vilardo does not seek to relocate the right-of-way
over lot 15 but, rather, to eliminate it altogether. The Moores have demonstrated that they
and plaintiffs were granted a right-of-way for passage to their lots over lot 15 and that,
consistent with the intent of the common grantors, it be located without obstructions
where it existed in 1985.” Judd v. Vilardo, 57 A.D.3d 1127 (3d Dept 2008)
iv. “Where, as here, there is merely a general reference to an existing road, without more, an
intent for a fixed location of the easement is not inferred.” Sullivan v. Woods, 2010 WL
653096 (3d Dept 2010).
v. “a fixed location, such as would be shown by, for example, a specific metes and bounds
description.” Chekijian Supra
VI. InterferencewithEasements:
a. ObstructionsandEncroachments
i. “…and even where a right of way was granted over certain roads marked on a plan, and
one was described there as forty feet wide, it was held that the grantee was entitled to
only a reasonable enjoyment of a right of way, and that such reasonable enjoyment was
not interfered with by the erection of a portico, which extended a short distance into the
road, so as to reduce it at that point to somewhat less than forty feet.’ Grafton v. Moir,
130 N.Y. 465 (1892) Citing Clifford v. Hoare, L. R. 9 C. P. 362; Hutton v. Hamboro, 2
Fost. & F. 218
b. GatesandFences
i. “The only kind of gate which can fail to interfere with defendant's right [to the free and
unobstructed use of the said private road or lane from the said Boston Road or Main
Street to the shore of Long Island Sound, aforesaid, for passage of horses and vehicles of
every kind and for all other lawful purposes] is one which not only remains unlocked but
which is perpetually kept open. Such a gate is useless for any purpose.” Missionary
Society of Salesian Congregation v. Evrotas, 256 N.Y.86 (1931)
ii. “The plight of these plaintiffs, confronted by gates which must be opened and closed
upon entering or leaving Peekskill Hollow Road, together with the additional burden of
walking or driving through the lot populated by defendant's animals, with the
responsibility of preventing the straying of those animals on to a heavily travelled public
highway when the gates are opened, is readily seen.” Sprogis v. Silleck, 223 N.Y.S. 2d
979 (Sup. Ct. Putnam Co., 1961).
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iii. “The plaintiff's right of passage must be enforced, but it must also be enforced in such
manner as will give him a reasonably full enjoyment of his right and at the same time
cause no undue burden upon the defendant in the beneficial use of his land. It appears in
the testimony, and was found by the trial court, that many trespassers had used this
passage from time to time, and that it ran through woodland in which at times cattle were
turned out. It likewise appears that at various times, since 1842, gates were maintained
over this passage, although in the course of years some of these gates had fallen into
decay. Although the plaintiff had owned his land since 1902, he seems not to have been
aware that he had any right of passage over the defendant's land until some time in 1911.
I am of opinion that the disposition of this question by the trial court was reasonable and
within its discretion, and I do not recommend any interference with it.” (permitting
defendant to lock the gates). Blydenburgh v. Ely 161 A.D.91 (2d Dept 1914).
VII. TransferofEasements:
a. EasementsinGross
i. Arenottransferable,assignableorinheritable.
ii. Extinguishupondeathofholder.
b. AppurtenantEasements
i. TransferofDominantEstate
1. “New York adheres to the majority rule that a grantor cannot create an easement
benefiting land not owned by the grantor (see Matter of Estate of Thomson v
Wade, 69 NY2d 570, 573). For an easement by grant to be effective, the
dominant and servient properties must have a common grantor (see Lechtenstein
v P.E.F. Enters., 189 AD2d 858, 859). If the common grantor conveys both the
dominant and servient properties, the easement must be provided for in the deed
to the dominant property and in the deed conveying the servient property (see
Matter of Estate of Thomson v Wade, supra). Here, the common grantor did just
that, on the same day. Accordingly, the easement by grant was properly
created.” SamDevelopmentLLCv.Dean292AD2d585(2ndDept,2002).
2. “The easement passes to subsequent owners of the dominant estate through
appurtenance clauses, even if it is not specifically mentioned in the deed.”
Djoganopolous v. Polkes, 95 A.D.3d 933 (2d Dept., 2012).
ii. DivisionofDominantEstate
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1. “The easement is not extinguished by subdivision for any portion of the land to
which it applies so long as no additional burden is imposed upon the servient
estate by such use, even if the resulting dominant and servient estates are not
contiguous.” Djoganopolous, Supra
iii. ReservedEasements
1. Reservedeasementsingrossforthegrantor
2. Reservedeasementscreateadominantparcelinthoselands
retainedbytheCommonGrantoroverthelandsconveyedto
thegrantee(servientparcel).
a. “Thus, an existing easement appurtenant will pass to the grantee of a
dominant estate even if the deed does not expressly refer to the
easement.” Will v. Gates, 89 N.Y.2d 778 (1997).
3. Owners of a servient estate are bound by constructive or inquiry notice ofeasements which appear in deeds or other instruments of conveyance in their
property's direct chain of title. Djoganopolous, Supra citing to Witter v. Taggart
78 N.Y.2d 234 (1991).
c. TransferssubjecttoEasements
i. RecordNotice:
1. Thereisaneasementorrestrictionrecordedinthedirectchain
oftitletotheproperty.
a. The guiding principle for determining the ultimate binding effect of a
restrictive covenant is that "[i]n the absence of actual notice before or at
the time of * * *purchase or of other exceptional circumstances, an
owner of land is only bound by restrictions if they appear in some deed
of record in the conveyance to [that owner] or [that owner's] direct
predecessors in title." Witter v. Taggart 78 N.Y.2d 234 (1991).
b. “…the owner of the servient estate will be bound by the subject
encumbrance only if it is recorded in his or her chain of title.”
Terwilliger v. VanSteenburg, 33 A.D.3d 1111 (3d Dept 2006).
c. “a deed conveyed by a common grantor to a dominant landowner does
not form part of the chain of title to the servient land retained by the
common grantor” Witter v. Taggart, supra at 239,
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ii. ConstructiveorInquiryNotice:
1. SomethingintheRecordexiststotipoffapotentialpurchaser
thattheremaybeaneasementorrestrictionontheproperty
a. “Subjecttoeasementsofrecord”
b. Recordedmapshowinganeasementorrestrictionon
thelandtobepurchased.
c. “The principle of equity is well established that a purchaser of land is
chargeable with notice, by implication, of every fact affecting the title,
which would be discovered by an examination of the deeds or other
muniment of title of his vendor, and of every fact, as to which the
purchaser, with reasonable prudence or diligence, ought to become
acquainted. If there is sufficient contained in any deed or record which
a prudent purchaser ought to examine, to induce an inquiry in the mind
of an intelligent person, he is chargeable with knowledge or notice of
the facts so contained.” The Cambridge Valley Bank v. Delano, 48 N.Y.
326 (1872) [regarding a mortgage]
iii. ActualNotice:
1. Somethingthepotentialpurchaserseesonthepropertytips
themoffthattheremaybeaneasementorrestrictiononthe
property,forexample,personallyobservingpowerlines,a
roadwayetc.
2. Potentialpurchaserknowsthereisaneasementorrestriction
onthepropertyviasomeothermeans,forexample,isshowna
mapbythegrantorpriortopurchase.Graham v. Beermunder, 93
A.D.2d 254 (2d Dept 1983).[where grantor gave the potential purchasers a map
of the development which was not filed in the county clerk’s office]
iv. CommonPlanorSchemeofDevelopment:
1. “However, equity may provide plaintiffs a remedy provided they show: (1) that
their parcels and the parcel owned by defendants are part of a general scheme or
plan of development (Korn v. Campbell, supra ); and (2) that, at the time
defendants purchased the property, they had notice, actual or constructive, of the
common scheme or plan (Steinmann v. Silverman, supra ). Upon such proof “the
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covenant is enforceable by any grantee as against any other upon the theory that
there is a mutuality of covenant and consideration which binds each, and gives
to each the appropriate remedy. Such covenants are entered into by the grantees
for their mutual protection and benefit, and the consideration therefore lies in the
fact that the diminution in the value of a lot burdened with restrictions is partly
or wholly offset by the enhancement in its value due to similar restrictions upon
all the other lots in the same tract” (Korn v. Campbell, supra, 192 N.Y. p. 495,
85 N.E. 687).” Graham v. Beermunder, 93 A.D.2d 254 (2d Dept 1983).
2. “In sum, we find that the evidence clearly and definitely shows that Guernsey
Hill, Section II, is a common scheme or plan of development. We are persuaded
of this by the following set of circumstances: (1) when Guernsey subdivided his
property, naming it “Guernsey Hill, Section II”, he had a map prepared and filed
with the Town Planning Board; (2) the presence in almost all the deeds of the
same nine restrictions, designed to insure a uniformity of appearance in an
estate-like atmosphere; (3) the inclusion in the deed to the last grantee,
defendants, of the covenants despite the fact that the grantor no longer retained
an interest in any of the property; (4) the use of the phrase “running with the
land”, indicating that the covenant at issue was not personal to the grantor and,
under the circumstances, implying that the other vendees were to have a right of
enforcement; and (5) the fact that when defendants purchased the property,
Guernsey gave them a copy of the map and informed them that all the parcels
depicted were subject to the same restrictions. This latter aspect also serves to
satisfy the notice to defendants which must be proven to allow plaintiffs'
equitable relief. Defendants have not offered any evidence which would cast
sufficient doubt on the issue so as to require a trial, and, therefore, summary
judgment is warranted.” Graham, Supra.
3. HomeOwnersAssociationshavestandingtoenforcerestrictive
covenants:
a. “In sum, it is reasonable to conclude that the corporate plaintiff
Westmoreland Association was formed as a convenient instrument by
which the property owners could advance their common interests and
that it has a substantial identification with the real property owners in
Westmoreland. Given all of the aforementioned factors, the
Westmoreland Association qualified as a bona fide representative of the
residents and property owners in the subject locale and, consequently,
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had standing to bring this action, irrespective of the fact that it may not
have met thetechnical requirements of privity of estate.” Westmoreland
Association, Inc. v. West Cutter Estates, Ltd., 174 A.D.2d 144 (2d
Dept, 1992).
VIII. ExtinguishmentofEasements:
a. Rule:
i. An easement acquired by grant “remains as inviolate as the fee favored by the grant,
unless conveyed, abandoned, condemned or lost through prescription” Gerbig v.
Zumpano, 7 N.Y.2d 327 (1960).
b. AdversePossession:
i. “As with any adverse possession claim, the party seeking to extinguish the easement must
establish that the use of the easement has been adverse to the owner of the easement,
under a claim of right, open and notorious, exclusive and continuous for a period of 10
years.” Spiegel v. Ferraro, 73 N.Y.2d 622 (1989)
ii. “Thus "an easement may be lost by adverse possession if the owner or possessor of the
servient estate claims to own it free from the private right of another, and excludes the
owner of the easement, who acquiesces in the exclusion for [the prescriptive period]"
Spiegel Supra.
iii. “While plaintiff and her family used the easement to hike, take nature walks and cross-
country ski, and while they also planted and mowed near it, such uses were not
inconsistent with the easement itself or adverse to Majkut (defendant's predecessor in
interest during the relevant 10-year time period). In other words, these uses did not
constitute a use of the easement to the exclusion of all others nor did they in any way
interfere with Majkut's use and enjoyment of the easement. Moreover, plaintiff did not
submit proof that she installed some type of physical barrier or obstruction to prevent
others, particularly Majkut, from using the easement during the entire prescriptive
period.” Gold v. DiCerbo, 41 A.D.3d 1051 (3d Dept. 2007).
iv. Exception:PaperStreetsandunlocated“paper”easements
1. “A narrow exception to this general rule has evolved with regard to the
extinguishment of easements that have not been definitively located through use.
In Smyles v Hastings (22 NY 217, 224), we held that an easement that was not
so definitively located through use and which lead to a "wild and unoccupied"
parcel, was not extinguished by adverse possession because the owner of the
easement had had no occasion to assert the right of way during part of the
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prescriptive period. Relying on Smyles, the Appellate Division has held that
such "paper" easements may not be extinguished by adverse possession absent a
demand by the owner that the easement be opened and a refusal by the party in
adverse possession. Spiegel Supra.
c. Abandonment
i. PublicHighwayEasement
1. Nonusebythepubicandnon‐maintenancebythepublic
authoritiesfor6years.NYHighwayLaw§205
2. FilingofacertificateofabandonmentbytheTownHighway
Superintendentisadiscretionaryduty,notmandatoryand
thereforewhetherornotonehasbeenfiledisnot
determinativeofwhetherabandonmentofthepubliceasement
forhighwaypurposesoccurred.SeeDaetschv.Taber,149
A.D.2d864(3dDept.,1989)
ii. PrivateEasement
1. Nonusealonedoesnotextinguishaprivateeasement
2. Mustbeanintenttoabandonandanovertactinfurtheranceof
theintentiontoabandontheeasement.
a. “[N]onuser alone, no matter how long continued, can never in and of
itself extinguish an easement created by grant ... In order to prove an
abandonment it is necessary to establish both an intention to abandon
and also some overt act or failure to act which carries the implication
that the owner neither claims nor retains any interest in the easement ...
[A]cts evincing an intention to abandon must be unequivocal.” Gerbig
v. Zumpano, 7 N.Y.2d 327 (1960).
b. The “burden to show abandonment of an easement by grant is a heavy
one.” Chapman v. Vondorpp, 256 A.D.2d 297 (2d Dept 1998).
c. EXAMPLESOFINTENTTOABANDON:
i. “The easement in question was for many years prior to
plaintiffs' acquiring title blocked at one end by the use of a
garden, and, indeed, plaintiffs' own title survey noted
specifically that it apparently was not in use. Accordingly,
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plaintiffs were on notice that the twenty-foot easement was of
questionable validity, notwithstanding a declaration of
easement filed prior to their acquiring the property and the
recitation of the easement in their deed. It is also pertinent that
plaintiffs have ingress and egress to the main street via another
easement.” DeCaesare v. Feldmeier, 184 N.Y.220 (1st Dept
1992)
ii. “The use of an alternate route of access while permitting the
unimpeded growth of trees to obstruct the right-of-way for
several decades may be indicative of an intent to abandon the
easement.” Chapman v. Vondorpp, 256 A.D.2d 297 (2d Dept.,
1998).
d. Conveyance
i. MergerofTitle
1. WhentheServientandDominantEstatesareunitedin
ownership,theeasementacrosstheservientportionis
extinguished
a. “The merger doctrine proceeds from a recognition that a person cannot
have an easement in his or her own land because all the uses of an
easement are fully comprehended in the general right of ownership
(internal citations omitted). Consequently, when the dominant and
servient estates become vested in one person, the easement terminates.
At that point, the easement no longer serves a purpose and the owner
may freely use the servient estate as its owner.” Will v. Gates, 89
N.Y.2d 778 (1997).
b. “Where, however, only a portion of the dominant or servient estate is
acquired, there is no complete unity of title and there remain other
dominant owners whose rights are inviolate. The easement rights of
these owners cannot be extinguished by a conveyance to which they are
not a party. An easement ceases to exist by virtue of a merger only
when there is a unity of title of all the dominant and servient estates.”
Will, Supra.
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ii. Agreementofallpartiesbenefitedbytheeasement‐Releaseof
Easement
1. Agreementsrelatingtorealpropertyhavetobeinwritingand
recordedtoconstituteaneffectiveextinguishmentofan
easement.
2. Hastoincludeeverydominantestateholder
iii. ConveyancetoaBonaFidePurchaserforValuewhohasnoactualor
constructivenoticeoftheeasement.
1. “A grantor may effectively extinguish or terminate a covenant when, as here, the
grantor conveys retained servient land to a bona fide purchaser who takes title
without actual or constructive notice of the covenant because the grantor and
dominant owner failed to record the covenant in the servient land's chain of
title.” Witter Supra.
2. “Although we share the concern expressed in the dissent that this rule is contrary
to the purpose of the recording act in that it essentially permits a common
grantor to convey more title than he or she has retained, we are constrained by
the detailed analysis in Witter v. Taggart,supra, which we find to be
controlling.” Terwilliger v. VanSteenburg Supra.
3. Exception:
a. “..a narrow exception to this rule has been carved out in counties where
a “block and lot” indexing system is used.” Terwilliger, Supra.
e. EminentDomain
i. Extinguishesallrightsinandtothepropertycondemned,including
anyeasements
1. “When defendant (New York State) takes property through eminent domain, it
takes in fee simple absolute and extinguishes all easements.” Thomas Gang Inc.
v. State, 19 A.D.3d. 861 (3d Dept 2005).
2. Taxforeclosureandsubsequentsalesdonotextinguish
easements
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a. “The private easement which we have hereinbefore found to have been
granted by implication was not affected by said tax sales for it has been
held that a tax sale of land burdened by easements lawfully acquired
prior to the levying of the tax for which the sale was made does
notextinguish the easement. ( Tax Lien Co. v. Schultze, 213N. Y. 9,
12.)” Thyhsen v. Brodsky, 51 Misc. 2d 1023 (Sup. Ct. Monroe Co.,
1966)b. “When Absolute acquired title at the tax sale, a description of the
property was limited to its tax grid number….. In order to determine
the boundaries of its holdings, Absolute should have searched the
County Clerk’s property records until it found the subdivision plat that
created its parcel. Had Absolute examined the plat, it would have
discovered the open space restriction.” O’Mara v. Wappinger, 9
N.Y.3d 303 (2007)[open space restriction]
f. TheEnd:
i. "Onceextinguished,aneasementisgoneforeverandcannotberevived"Sam
DevelopmentLLCv.Dean292AD2d585(2ndDept,2002)quoting(StilbellRealty
Corp.vCullen,43AD2d966,967).
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