| Marsh v Hogan |
| 2008 NY Slip Op 09322 [56 AD3d 1090] |
| November 26, 2008 |
| Appellate Division, Third Department |
| James E. Marsh, Respondent, v Patrick Hogan et al.,Appellants. |
—[*1] Levene, Gouldin & Thompson, L.L.P., Binghamton (Gary W. Farneti of counsel), forrespondent.
Kane, J. Appeal from an order of the Supreme Court (Tait, J.), entered December 26, 2007 inTioga County, which granted plaintiff's motion for partial summary judgment.
Plaintiff owns a landlocked parcel abutting defendants' property. In 1985, to resolve hisaction to establish an easement by necessity, plaintiff entered into a settlement agreement withthree of defendants' predecessors in title, including Charles Farrell. The settlement agreementcreated a right-of-way in favor of plaintiff over what is now defendants' property. Pursuant to thatagreement, in 1990 Farrell obtained a survey of his property containing a proposed subdivisionand filed the map in the County Clerk's office. The survey laid out a future public road thatwould form part of the right-of-way discussed in the settlement agreement, as well as a 90-footeasement connecting plaintiff's property to this proposed road. Only approximately one third ofthat road was ever built because Farrell abandoned his subdivision plans after completing onlyfour of 15 proposed homes.
In 2004, Farrell sold his remaining property to defendants, who had notice of plaintiff'seasement rights. Defendants built a house on their property, partially within the portion ofunimproved land designated on the survey map for the future public road. When defendants sawplaintiff on their property and forbade him from further access, he commenced this actionseeking, among other things, to determine his easement rights and remove the house and otherstructures from his right-of-way. Plaintiff moved for partial summary judgment declaring the[*2]validity of his easement, setting its boundaries as depicted inthe 1990 survey and enjoining defendants from interfering with his use of and access to theright-of-way. Supreme Court granted the motion, finding that the settlement agreement andsurvey map created an easement. The court left for later determination the equitableconsiderations concerning the extent to which defendants' house encroaching on the easementmay impair plaintiff's access to his property. Defendants appeal.
Supreme Court properly determined that plaintiff has an easement with boundary lines as laidout in the 1990 survey map. The settlement agreement created an easement by express grant,even though it did not state the precise location of the easement (see Wilcox v Reals, 178AD2d 885, 886 [1991]; see also Willow Tex v Dimacopoulos, 68 NY2d 963, 965[1986]). "The extent and nature of an easement must be determined by the language contained inthe grant, aided where necessary by any circumstances tending to manifest the intent of theparties" (Hopper v Friery, 260 AD2d 964, 966 [1999] [citations omitted]; see Raven Indus., Inc. v Irvine, 40AD3d 1241, 1242 [2007]). The settlement agreement specifically referenced a survey whichwas yet to be performed and provided plaintiff with a right-of-way over a road to be laid out aspart of that survey. This was not a general description, which could permit the servientlandowner to relocate the right-of-way, but indicated a fixed location for the right-of-way,namely the roadway and 90-foot easement laid out with metes and bounds descriptions on theforthcoming survey map (see Estate Ct.,LLC v Schnall, 49 AD3d 1076, 1077-1078 [2008]; Wechsler v People, 13 AD3d 941, 943 [2004]; compare Chekijian v Mans, 34 AD3d1029, 1031 [2006], lv denied 8 NY3d 806 [2007]; Chesnol v Gallagher, 283App Div 911, 911 [1954]). Although the agreement notes that a temporary easement will belocated "along a line mutually agreed upon" by the parties, this temporary location of theeasement existed only pending completion of the survey and conveyance of the property fromdefendants' other predecessors in title to Farrell. Once the survey was completed, the specificdescription of the roadway and 90-foot easement laid out therein constituted the right-of-wayexpressly granted to plaintiff. Accordingly, plaintiff was entitled to partial summary judgmentdeclaring that he possesses an easement as described in the settlement agreement and laid out inthe 1990 survey map. Such a declaration delineating the easement is appropriate even thoughquestions may remain concerning the equitable considerations related to defendants'encroachment on that easement (cf.Lang v Carroll, 24 AD3d 1078 [2005]).
Mercure, J.P., Spain, Rose and Stein, JJ., concur. Ordered that the order is affirmed, withcosts.