| Stonegate Family Holdings, Inc. v Revolutionary Trails, Inc., BoyScouts of Am. |
| 2010 NY Slip Op 03821 [73 AD3d 1257] |
| May 6, 2010 |
| Appellate Division, Third Department |
| Stonegate Family Holdings, Inc., Appellant, v RevolutionaryTrails, Inc., Boy Scouts of America, Formerly Known as Boy Scouts of America, Lands of theOneidas Council, Inc. and Another, et al., Respondents. |
—[*1] Bond, Schoeneck & King, P.L.L.C., Syracuse (S. Paul Battaglia of counsel), forRevolutionary Trails, Inc., Boy Scouts of America, respondent. Andrew M. Cuomo, AttorneyGeneral, Albany (Michael S. Buskus of counsel), for State of New York, respondent.
Peters, J. Appeals (1) from an order of the Supreme Court (Aulisi, J.), entered August 29,2008 in Hamilton County, which, among other things, granted a motion by defendantRevolutionary Trails, Inc., Boy Scouts of America for a protective order, and (2) from an orderof said court, entered July 10, 2009 in Hamilton County, which, among other things, granteddefendants' motion for summary judgment dismissing the complaint.[*2]
Defendant Revolutionary Trails, Inc., Boy Scouts ofAmerica (hereinafter the Boy Scouts) is the owner of approximately 5,500 acres of land in theTown of Long Lake, Hamilton County, which it acquired by deeds from Amandus Watts in July1963. At the same time, Watts also granted the Boy Scouts a permanent right-of-way over a roadfor "full and complete right of ingress and egress to and from" the property. In a separateagreement between the Boy Scouts and Watts executed on the same day as the conveyance, theparties agreed that these conveyances had been made "upon the express condition that the landsthereby conveyed shall be used and utilized as an outdoor camp and recreation park for membersof [the Boy Scouts] and organizations allied or affiliated therewith . . . and indefault thereof or upon breach of the condition aforesaid the lands so conveyed shall revert to[Watts], his assigns and legal representatives, provided however, that this condition shall. . . in no event . . . extend beyond thirty-five years from the datehereof."
In 1959, four years prior to his conveyance to the Boy Scouts, Watts entered into anagreement with adjoining landowners creating a right-of-way over lands then owned by Watts,which are now owned by the Boy Scouts and plaintiff. That agreement provided that, "until thesaid roadway over which the easements are hereby granted shall become a public, state, countyor town road, the same shall be and remain a private road for the exclusive use . . .of the parties hereto and their grantees of the premises and property to which said easements areappurtenant." The agreement further provided that, until the actual dedication of the road to aproper public authority, "no member of the general public shall have any right to use the lands ofthe parties hereto or any part thereof."
In November 2002, the Boy Scouts sold a conservation easement in perpetuity to defendantState of New York (see ECL 49-0303 [1]), which permits public use and recreation onthe Boy Scouts' property for 10 months of the year and allows the public to access the propertyvia a portion of the right-of-way that traverses plaintiff's land.[FN1]In June 2005, plaintiff commenced this action against defendants for declaratory and injunctiverelief alleging, as relevant here, that the 1963 agreement forever restricts the Boy Scouts' use ofthe property to scouting activities (first cause of action), that the Boy Scouts could not sell orconvey access over the private right-of-way while retaining fee ownership of the land (secondcause of action), and that the State's use of the easement impermissibly converted the privateright-of-way into a public right-of-way (third cause of action).
In an attempt to establish a violation of the use restriction contained in the 1963 agreement,plaintiff demanded production of, among other things, documents and information dating back to1963 relating to mining and/or the removal of any other mineral or natural product from the BoyScouts' property. Supreme Court granted the Boy Scouts' motion for a protective [*3]order, concluding that the use restriction contained in thatagreement was a condition subsequent that could only be enforced by the creator or its heirs.Subsequently, the Boy Scouts moved for summary judgment dismissing the complaint, in whichthe State joined, and plaintiff cross-moved for partial summary judgment.
Reiterating its prior determination that the use restriction contained in the 1963 agreementwas a condition subsequent, Supreme Court granted defendants' motion dismissing plaintiff'sfirst cause of action. The court then went on to dismiss plaintiff's second and third causes ofaction, concluding that the 1959 agreement did not prohibit the State, as holder of theconservation easement, from permitting public invitees to traverse the right-of-way. Plaintiffnow appeals from both the protective order and the order dismissing the complaint.
Supreme Court properly dismissed plaintiff's first cause of action based on violations of the1963 agreement. Plaintiff contends that the use restriction contained in the agreement applies inperpetuity and that only the reversionary clause expired 35 years later, in 1998. Such aconstruction, however, conflicts with the clear language of the 1963 agreement, which plainlyindicates that the 35-year expiration date applies to the "condition"—that the Boy Scoutsuse the property as an outdoor camp and recreation park—not simply the reversionaryclause. Since the use restriction expired in 1998, the Boy Scouts' conveyance of the conservationeasement to the State in 2002 did not violate the 1963 agreement.
To the extent that plaintiff claimed a pre-1998 violation of the 1963 agreement, SupremeCourt correctly determined that the use restriction constituted a condition subsequent, as opposedto a covenant, that could not be enforced by plaintiff. Whether the language used in theagreement amounted to a covenant or a condition subsequent is dependent upon the parties'intent, which "is drawn from the governing instrument itself and from the particular languageselected to reflect the goals and understandings of the parties" (Suffolk Bus. Ctr. v AppliedDigital Data Sys., 78 NY2d 383, 388 [1991]; see Real Property Law § 240[3]; Stratis v Doyle, 176 AD2d 1096, 1098 [1991]).
Here, despite the use of both the words "covenant" and "condition," the 1963 agreementcontains the "effective formulae" for creation of a condition subsequent (Fausett vGuisewhite, 16 AD2d 82, 87 [1962] [internal quotation marks omitted]; seeRestatement [First] of Property § 45, Comments l, m, Illustration 9;see e.g. Schulman v Ellenville Elec. Co., 152 Misc 843, 843-844 [1934], affd248 App Div 662 [1936]) and reserves to the grantor the right of reacquisition, which "is one ofthe clearest and strongest manifestations supporting a finding of intent to create a future intereston a condition subsequent" (Suffolk Bus. Ctr. v Applied Digital Data Sys., 78 NY2d at388-389; see Trustees of Union Coll. v City of New York, 173 NY 38, 41-42 [1903];McAndrew v Lanphear, 280 App Div 6, 9 [1952]).[FN2]In our view, the use restriction in the 1963 agreement [*4]clearlyconstitutes a condition subsequent. Since a condition subsequent was not assignable, devisableor descendible under the common law at the time the 1963 agreement was made (see UnitedMethodist Church in W. Sand Lake v Dobbins, 48 AD2d 485, 486 [1975]; Fausett vGuisewhite, 16 AD2d at 87), and the provisions of EPTL 6-5.1 altering this rule areinapplicable because Watts was not living at the time of the statute's effective date (seeEPTL 1-1.5; United Methodist Church in W. Sand Lake v Dobbins, 48 AD2d at 486), itcannot be enforced by plaintiff.[FN3]For these reasons, Supreme Court properly dismissed plaintiff's first cause of action[FN4]and granted the Boy Scouts' application for a protective order.
Plaintiff next contends that the Boy Scouts' transfer of the conservation easement to theState, which permits members of the public to use a roadway across plaintiff's land to access theBoy Scouts' property, violates the 1959 agreement. As previously stated, the 1959 agreementprovides that the roadway over which the right-of-way was granted "shall be and remain aprivate road for the exclusive use" of the parties to that agreement "and their grantees of thepremises and property" to which the right-of-way is appurtenant. Plaintiff contends that the Stateis not a "grantee of the premises and property" at issue and that, by permitting the public to usethe roadway across its land to access the Boy Scouts' property, the conservation easement [*5]impermissibly enlarged the scope of the easement and, furthermore,converted the private right-of-way into a public right-of-way. We address these arguments inturn.
First, although the Boy Scouts retained fee title of the property, the conservation easementhere provides a perpetual right in the property, including the right to enter and use the land for 10months of the year, as compared to a mere right to traverse the roadway. Under thesecircumstances, the nature and scope of the State's rights under the conservationeasement—which is defined as an "interest in real property" (ECL 49-0303[1])—are such that it is equivalent to a transfer of a freehold estate in the land (seeFischer v Zepa Consulting, 95 NY2d 66, 71 [2000]). Thus, we find that the State was a"grantee" of an interest in the "premises and property" within the meaning of the 1959agreement. In so finding, we reject plaintiff's argument that the Boy Scouts could not transfer itseasement rights to the State while retaining a fee interest in the property. Conservationeasements are of a character wholly distinct from the easements traditionally recognized atcommon law and are excepted from many of the defenses that would defeat a common-laweasement, including that it be appurtenant to an interest in real property (see ECL49-0305 [5]).
We next address the scope of the easement—specifically, whether the right conveyedto the State carries with it the right to open up the right-of-way to public invitees. "The extentand nature of an easement must be determined by the language contained in the grant, aidedwhere necessary by any circumstances tending to manifest the intent of the parties" (Hopperv Friery, 260 AD2d 964, 966 [1999] [citations omitted]; accord Leaman vMcNamee, 58 AD3d 918, 919 [2009]). The terms of such grant are to be construed mostfavorably to the grantee in ascertaining the extent of the easement (see Missionary Socy. ofSalesian Congregation v Evrotas, 256 NY 86, 89 [1931]; Wechsler v People, 13 AD3d 941, 943 [2004]; Seide vGlickman, 295 AD2d 494, 495 [2002]).
Here, the clear intent of the 1959 agreement was to create for the parties a right of ingressand egress to their respective properties and, in our view, to preclude any party thereto frommaking the "private" road a "public" road in the legal sense. The parties to the agreementacknowledged that a public road would be mutually beneficial and agreed to cooperate towardthe goal of the roadway becoming a public road by dedication with mutual consent, rather thanby public use. We simply cannot agree with plaintiff's contention that, by allowing the generalpublic to traverse the roadway in order to gain access to the property, defendants haveimpermissibly converted the private right-of-way into a public right-of-way. A private road canbe converted to a public road through acquisition by eminent domain (see Highway Law§§ 29, 30, 118-122) or, as specifically contemplated in the 1959 agreement, bydedication of the land to a municipality (see Highway Law § 171). The languagein the agreement that the roadway over which the right-of-way was granted "shall be and remaina private road" "does not restrict the nature or frequency of [the State's] use by . . .its employees, invitees and licensees" (Inter Community Mem. Hosp. Bldg. Fund vBrown, 9 Misc 2d 202, 204-205 [1957]; compare Byrne v Village of Larchmont,234 AD2d 250, 250-252 [1996]). In that regard, we note that the State is using and permittingaccess over the right-of-way not in its governmental or municipal capacity, [*6]but as the private holder of the right-of-way and an interest in theland.
Any other construction of the challenged easement would prohibit the other easementholders from allowing any member of the general public—including theirlicensees and invitees—to use the right-of-way to gain access to that party's own property.Such an interpretation is "unnecessarily restrictive and contrary to its apparent meaning asevidenced by the conduct of the respective owners over the years" (Passaic Val. Council BoyScouts of Am. v Hartwood Syndicate, 46 AD2d 247, 250 [1974]). At the time of the 1959agreement, all of the property at issue was owned by Watts, who subsequently conveyed separateparcels of it to plaintiff, the Boy Scouts and others. It seems highly unlikely that Watts intendedto prevent himself from allowing members of the public to use other portions of his own land.Moreover, for many years both plaintiff and the Boy Scouts have opened up the right-of-way totheir invitees to access their respective properties. Thus, we conclude that members of the public,as invitees of the State through its conservation easement, can permissibly use the right-of-wayto access the Boy Scouts' property without violating the spirit and intent of the 1959 agreement.
Finally, Supreme Court dismissed the complaint, but did not issue a declaration in thispartial declaratory judgment action as was required (see CPLR 3001). We thereforedeclare that the Boy Scouts' property is no longer restricted to scouting purposes, that the BoyScouts' conveyance of the conservation easement to the State was valid and that the State mayallow the public to access the property over the right-of-way pursuant to the conservationeasement.
Mercure, J.P., Rose, Stein and McCarthy, JJ., concur. Ordered that the order entered August29, 2008 is affirmed, without costs. Ordered that the order entered July 10, 2009 is modified, onthe law, without costs, by declaring that the property of defendant Revolutionary Trails, Inc.,Boy Scouts of America is no longer restricted to scouting purposes, that the Boy Scouts'conveyance of the conservation easement to defendant State of New York was valid and that theState may invite members of the public to access the property over the right-of-way pursuant tothe conservation easement, and, as so modified, affirmed.
Footnote 1: The conservation easementreserved to the Boy Scouts a right of exclusive access each year during the months of July andAugust.
Footnote 2: Also indicative of an intent tocreate a condition subsequent is the fact that the grant made the continued enjoyment of theproperty dependent on the performance of a certain stipulation (see Suffolk Bus. Ctr. vApplied Digital Data Sys., 78 NY2d at 395 [Kaye, J., dissenting]; Munro v Syracuse,Lake Shore & N. R.R. Co., 200 NY 224, 230 [1910]).
Footnote 3: Even if the use restriction couldbe enforced by plaintiff, such a claim could only be brought pursuant RPAPL 1953 and would bebarred due to the expiration of the statute of limitations. On the latter point, an action based upona claim of reverter or breach of a condition subsequent must be commenced within 10 years after"the occurrence of the reverter or the first occurrence of the breach" (RPAPL 612 [1]). Inasmuchas plaintiff asserts that the Boy Scouts violated the use restriction "no later than 1993" bypermitting mining on its land, and this action was commenced in 2005, a claim for breach of thatcondition subsequent would now be time-barred (see People v Avilas, Inc., 29 AD3d 764, 765 [2006]).
Footnote 4: As plaintiff did not submit anyproof on the summary judgment motion that would have changed the result of Supreme Court'sprior finding that the use restriction constituted a condition subsequent that plaintiff could notenforce, the court did not err in adhering to that determination in dismissing the first cause ofaction.