practical skills— easement law in new york

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

1

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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2

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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3

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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4

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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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).


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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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“…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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© Laura E. Ayers

[email protected]

518‐456‐6705

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TheLawOfficeofLauraE.Ayers,Esq. 434MainStreet,P.O.Box237 Schoharie,NY12157 (518)456‐6705 www.lauraayerslaw.com

©LauraE.Ayers,Esq.

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).

131

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