| Ford v Rifenburg |
| 2012 NY Slip Op 02746 [94 AD3d 1285] |
| April 12, 2012 |
| Appellate Division, Third Department |
| Mary Frances Ford, Respondent-Appellant, v John K. Rifenburg etal., Appellants-Respondents. |
—[*1] Thuillez, Ford, Gold, Butler & Young, L.L.P., Albany (Donald P. Ford Jr. of counsel), forrespondent-appellant.
Rose, J. Cross appeals from an order and judgment of the Supreme Court (Krogmann, J.),entered May 18, 2011 in Warren County, which granted plaintiff's motion for summaryjudgment.
Plaintiff and defendants are the owners of adjacent lots in the Brant Lake Estates subdivisionon Brant Lake in the Town of Horicon, Warren County. The common grantor imposed a numberof restrictive covenants on the lots for the benefit of all grantees. Plaintiff commenced this actionpursuant to RPAPL 2001 seeking to enforce three of those restrictive covenants by enjoiningconstruction of defendants' proposed boathouse in the waters of Brant Lake. Supreme Court,finding one of the restrictive covenants applicable, granted plaintiff summary judgment andissued a permanent injunction. Defendants appeal and we affirm.[FN1][*2]
The restrictive covenant at issue provides that "[a]nydock, pier or land projection constructed in or over the lake shall be no closer than [15] feet fromthe adjoining property line, and no such structure shall be built with sides." Defendants do notdispute that they had notice of this restrictive covenant or that plaintiff has standing to enforce it.Instead, defendants contend that it is unenforceable because the common grantor did not own theunderwater land and thus had no right to impose any restrictions on it. Similarly, defendantscontend that they do not own the underwater land and, therefore, RPAPL 2001 does not applybecause the boathouse will not be on their "premises." We agree with Supreme Court that,regardless of the ownership status of the underwater land, defendants' riparian[FN2] right to access the water adjoining their lot is part and parcel of their use of their land and istherefore subject to the restrictions to which they agreed when they purchased the property.
Restrictive covenants are matters of private agreement by which " 'a particular use of landmay be enjoined' " (Chambers v OldStone Hill Rd. Assoc., 1 NY3d 424, 432 [2004], quoting Matter of Friends ofShawangunks v Knowlton, 64 NY2d 387, 392 [1985]; see Witter v Taggart, 78NY2d 234, 237 [1991]). A riparian owner has the right of access to navigable water and "theright to make this access a practical reality by building a pier, or wharfing out" (Town ofOyster Bay v Commander Oil Corp., 96 NY2d 566, 571 [2001] [internal quotation marksomitted], citing Town of Brookhaven v Smith, 188 NY 74, 85 [1907]). Defendantsacknowledge that they hold this right by virtue of their status as riparian owners of the uplandlots. Given the nature of this right, the common grantor was able to place restrictions on the useof the water by the upland lot owners and the restrictive covenant is enforceable whether or notthe common grantor owned the lake bed (see Silberman v Mayer, 48 Misc 468, 472-473[1905], affd sub nom. Silberman v Uhrlaub, 116 App Div 869 [1907]). Defendants'argument that RPAPL 2001 is inapplicable because the boathouse is not on their "premises" issimilarly flawed, as that term has been construed to include "all rights in property of the nature ofland which belong to the owner by virtue of his title thereto" (1 Rasch, New York Law andPractice of Real Property § 1:6, at 4 [2d ed 1991]).
Finally, defendants argue that the restrictive covenant should not be construed to includeboathouses in the absence of an explicit preclusion of them. We disagree. While restrictivecovenants "must be construed as they read and not be given a construction extending beyond theliteral meaning of their terms" (Buffalo Academy of Sacred Heart v Boehm Bros., 267NY 242, [*3]249 [1935]; see Dever v DeVito, 84 AD3d 1539, 1542-1543 [2011], lvdismissed 18 NY3d 864 [2012]), the restriction here clearly precludes, among other things,docks built with sides. According to the drawings provided in the record by defendants' ownarchitect, the proposed structure consists of timber cribs supporting a clearly labeled two-slipdock on which a boathouse composed of four sides and a roof is to be built. It is the addition ofsides to be built on the dock that runs afoul of the plain language of the restrictive covenant,regardless of the lack of any explicit mention of boathouses.
Peters, P.J., Kavanagh, Garry and Egan Jr., JJ., concur. Ordered that the order and judgmentis affirmed, without costs. Ordered that the cross appeal is dismissed, without costs.
Footnote 1: Plaintiff cross-appeals from somuch of the order that denied summary judgment on the other two restrictive covenants.However, as plaintiff was granted summary judgment, she is not an aggrieved party permitted toappeal and her cross appeal is dismissed (see CPLR 5511). Although plaintiff'sarguments are properly before us as alternative grounds for affirmance, our decision renders themacademic and we do not reach their merits (see McCormick v Bechtol, 68 AD3d 1376, 1378 n 2 [2009], lvdenied 15 NY3d 701 [2010], cert denied 562 US —, 131 S Ct 655 [2010]).
Footnote 2: While "[a] true riparian ownerowns land along a river" (Town of Oyster Bay v Commander Oil Corp., 96 NY2d 566,571 [2001]), and the owner of property along a lake is more accurately described as a littoralowner (see Black's Law Dictionary 952 [8th ed 2004]), the distinction between theseterms is outdated (see Town of Oyster Bay v Commander Oil Corp., 96 NY2d at 571).