| Jordan v Vogel |
| 2009 NY Slip Op 01391 [59 AD3d 919] |
| February 26, 2009 |
| Appellate Division, Third Department |
| Allan L. Jordan et al., Appellants, v John J. Vogel, Defendant, andMichael S. Wallace, Respondent. |
—[*1] Lester A. Sittler, Fly Creek (Cynthia Feathers, Saratoga Springs, of counsel), forrespondent.
Stein, J. Appeal from a judgment of the Supreme Court (Coccoma, J.), entered January 14,2008 in Delaware County, which granted defendant Michael S. Wallace's motion for summaryjudgment dismissing the complaint against him.
This appeal involves the description and location of an easement. Plaintiffs acquired theeasement in question from William Egan Jr., allowing them to use water from a pond on Egan'sproperty to generate electricity for their home. Defendants Michael S. Wallace and John J. Vogeleach later acquired land from Egan's widow, with Vogel acquiring the land subject to plaintiffs'easement. Wallace subsequently sold to plaintiffs a portion of his land which bordered the pond.Plaintiffs commenced this action pursuant to RPAPL article 15 alleging that Vogel wasinterfering with plaintiffs' easement. Wallace was joined as a defendant to the action on the solebasis that his property might be affected. Wallace moved for summary judgment dismissing thecomplaint against him on the ground that his property did not encompass the easement indispute. Supreme Court granted the motion and plaintiffs now appeal.
We reverse. Preliminarily, we note that, while the construction of an instrument [*2]conveying real property, including any easements set forth therein,is ordinarily a question of law for the court to determine, where the description of the subject ofthe conveyance is ambiguous, the grantor's intent may be demonstrated by extrinsic evidence (see Eliopoulous v Lake George LandConservancy, Inc., 50 AD3d 1231, 1232 [2008]; Spencer v Connolly, 25 AD3d 832, 834 [2006]; Webster v Ragona, 7 AD3d 850,853-854 [2004]; Town of Guilderland v Swanson, 29 AD2d 717, 718-719 [1968],affd 24 NY2d 872 [1969]). "Moreover, where the extrinsic evidence presented raises aquestion of fact, summary judgment is inappropriate" (Eliopoulous v Lake George LandConservancy, Inc., 50 AD3d at 1232 [citation omitted]). It is also well settled that there is apresumption that easements adjoining nonnavigable ponds and streams include access to thecenter of the water (the low water mark at common law), but the parties may alter thispresumption by express terms in the deed (see Gouverneur v National Ice Co., 134 NY355, 364-365 [1892]; Knapp vHughes, 25 AD3d 886, 890 [2006], lv dismissed 7 NY3d 921 [2006]).
Here, the agreement between plaintiff Allan L. Jordan and Egan expressly describes theeasement as consisting of "100 feet in width around the perimeter of said pond." The partiesagree that the easement is 100 feet wide and that the intention was to measure the easement fromthe perimeter, rather than the center, of the pond. However, Wallace claims that the easementshould be measured from the "water's edge," while plaintiffs contend that it should be measuredfrom the top of the pond bank. Thus, in support of his motion, Wallace provided a surveymeasuring the easement from what he deemed to be the perimeter of the pond—the water'sedge—which established that the easement did not include his property. In contrast, thesurvey offered by plaintiffs in opposition to Wallace's motion measured the easement from thehigh water mark of the pond, including the pond bed, certain culverts and the top of the pondbank. As so measured, the easement was encompassed within Wallace's property.
Each party offered extrinsic evidence supporting the interpretation of the easement that theyespouse. Since we find that the word "perimeter" is susceptible of more than one interpretationand, therefore, that the easement is not clear and unambiguous on its face, we conclude thatplaintiffs created a triable issue of fact as to the location of the easement—and,specifically, whether any portion thereof is on Wallace's property (see CPLR 3212 [b];Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of NewYork, 49 NY2d 557, 562 [1980]; Friends of Animals v Associated Fur Mfrs., 46NY2d 1065, 1067-1068 [1979]; Eliopoulous v Lake George Land Conservancy, Inc., 50AD3d at 1232; cf. Spencer v Connolly, 25 AD3d at 834). Therefore, Wallace's motionfor summary judgment should have been denied.
Cardona, P.J., Peters and Kavanagh, JJ., concur. Ordered that the judgment is reversed, onthe law, with costs, and motion denied.