locating undefined easements...easements for utilities, pipelines, docks and other structures ! once...

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Locating Undefined Easements Laura E. Ayers, Esq.

The Law Office of Laura E. Ayers, Esq.

P.O. Box 237 – 434 Main Street

Schoharie, NY 12157

[email protected]

(518) 456-6705

Introduction

Express Easement:

!  An easement appurtenant occurs when it is

!  1) conveyed in writing,

!  2) subscribed to by the creator and

!  3) burdens the servient estate for the benefit of the dominant estate.

!  Green v. Mann, 237 A.D.2d 566 (2nd Dept 1997).

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Introduction

!  Implied Easements – implied by law by the circumstances of the severance of title

!  Prescriptive Easements – acquired by use of another’s property for the requisite period

Definition and Identification

!  Undefined Easement:

!  An express grant or reservation of an easement

!  That does not contain “detailed dimensional specifications”

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!  What does: “Detailed Dimensional Specifications” mean?

!  explicit reference to metes and bounds in the grant of easement

!  Exact distances and measurements used in the grant of easement

!  Specific measured references to high water lines, monuments, neighboring properties and other landmarks


!  Legal Significance: Undefined easements can be unilaterally moved by the servient estate holder (landowner) if the new location meets certain criteria. Lewis v. Young, 92 NY2d 443 (1998)

!  Surveying Significance: Locating the easement in the field???

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!  Examples of Undefined Easements:

!  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.”

!  Lewis v. Young


!  Example of an Undefined Easement

!  “Together with a right of way to said parcel 2, over and across the lands of [Fredenburg], along such a course as it most convenient to [Mann] to reach the same.”

!  Cronk v. Tait, 305 A.D.2d 947 (3d Dept 2003)

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!  Example of an Undefined Easement:

!  “a right of way leading over an existing road from Route 9 in a southeasterly direction to the parcel herein conveyed for all purposes.”

!  Chekijian v. Mans, 34 AD3d 1029 (3d Dept 2006)


!  Example of an Undefined Easement

!  "Excepting and Reserving from this conveyance, however, the use in common with said James McNamee, his heirs and assigns, of a certain well of water located upon the land herein conveyed, and of that portion of a road or private way leading to Route 295--State road--located upon the same land, and also the right and privilege of crossing said land by a foot path, as it now exists, to and from said well of water and to and from said road or private way.”

!  Leaman v. McNamee, 58 AD3d 918 (3d Dept 2009)

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!  Example of an undefined Easement

!  The Clemensens' deed contains language granting them an easement over "the southerly ten feet" of a private driveway/roadway running along the southern boundary line of their property, "together with the right of way of ingress and egress over the continuation of said private roadway as now or hereafter located to the Hudson River."

!  Menucha of Nyack, LLC v. Fisher, 110 A.D.3d 1037 (2d Dept 2013).

Locating an Undefined Easement

!  “Mere use of a particular path in accordance with an explicit right to do so is neither hostile nor adverse. Thus, continued usage of that 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.”

!  Lewis v. Young, supra at 453 (1998 Court of Appeals)

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!  Locate with detailed dimensional specifications the area of the servient property where the easement rights are being exercised

!  Locate the area of the servient property where the easement rights may have been exercised in the past

!  Note that the location of the easement is not defined by “Detailed Dimensional Specifications” in the grant but is defined as “_____” by quoting the grant or reservation from the deed/agreement/conveyance.


!  Court exercising it’s equity jurisdiction may locate an undefined easement

!  Typically they place it along existing paths or in a location where it is the least burdensome for the servient parcel, yet still fulfills the purpose of the grant of easement

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!  “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.


!  “Finally, we note that, if the parties are unable to settle this case and resolution of the factual issues at trial results in a determination that the easement crosses defendant's entire lot, this appears to be a case where relocating the road from its current close proximity to defendant's residence might be appropriate.”

!  Leaman v. McNamee, 58 A.D. 3d 918 (3d Dept 2009)

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!  Easements For Utilities, Pipelines, Docks and other structures

!  Once the location is selected the location is “fixed” and there is no right of the servient estate holder to relocate such easements because the easement can only be enjoyed when the location is fixed

!  Lewis v. Young, 92 NY 2d 443 at 451

Depicting an Undefined Easement

!  Show with detailed dimensional specifications the area of the servient property where the easement rights are being exercised

!  Depict the area of the servient property where the easement rights may have been exercised in the past

!  Depict the area of the servient property where the easement rights may be exercised with the least impact on the servient estate

!  Note that the location of the easement is not defined by “Detailed Dimensional Specifications” in the grant but is defined as “_____” by quoting the grant or reservation from the deed/agreement/conveyance.

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Depicting an undefined easement

!  “we need note only that defendants commissioned and received a survey map prior to the purchase of their property, and that survey map makes reference to the right-of-way and specifically references Liber 148 at page 148, which is the location of the recorded deed from Fredenburg creating the easement at issue. Under such circumstances, defendants were on notice of the existence of the easement regardless of whether they examined the public record referenced in the survey map.”

!  Cronk v. Tait, 305 A.D.2d 947 (3d Dept 2003)

Moving an undefined easement

!  “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 v. Young, 92 NY2d 443 at 452

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Moving an Undefined Easement

!  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


!  “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.”

!  “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.”

!  Lewis v. Young

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Village ofWesthampton Beach

EASTHAMPTON

SOUTHOLD

SHELTER ISLAND

RIVERHEAD

Village ofWest Hampton Dunes

Village ofQuogue

Village ofSouthampton

Village ofSagaponack

Village ofNorth Haven Village of

Sag Harbor

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1 in = 2.63 miles

TOWN OF SOUTHAMPTON

Northampton

Riverside

FlandersHampton

Bays

EastQuogue

Westhampton

QuioqueRemsenburg -

Speonk

EastportC

ShinnecockHills

Tuckahoe

NorthSea

WaterMill

Bridgehampton

Noyack

Sagaponack

ShinnecockIndian

Reservation

SHINNECOCKBAY

ATLANTICOCEAN

GREAT PECONICBAY

LITTLE PECONICBAY

LONG ISLANDSOUND

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Middle Line HwyLIPA

Middle Line Hwy

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Cty Rd 7 9

M illstone Rd

LIPA

Newli ght Ln

Flying Point Rd

Fowler St

N Sea Rd

Montauk Hwy

Cty Rd 39

Pe

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Sunrise Hwy - S tate Hwy 27

Cty R d 31

LIRR

Cty Rd 104

Cro s s Rive

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Hildreth Rd

LIP A

Lake Ave

LIPA

Eas t

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Speo

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LIRR

Lakewood Ave

Prepared by Suffolk County Department of Planning, January 20, 2010.Hamlet boundaries lines based upon the United States Census Designated Places, 2000.


!  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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Moving an Undefined Easement

!  That is, "a landowner may not unilaterally change a right of way if

that change impairs [the] enjoyment of the easement holder's rights" (Id.

at 452 ). Here, plaintiffs submitted photographs and testified in detail

regarding the manner in which defendants' narrowing of the relocated

right-of-way and the inclusion of sharp turns thereon impaired their own

access to their parcels, as well as that of garbage and delivery trucks.

!  MACKINNON V. DAMIEN, 72 AD3d 1356 (3d Dept 2010).

Case Studies

!  Onthank v. The Lake Shore and Michigan Southern Railroad Company, 71 N.Y. 194 (1877)

!  Green v. Mann 237 A.D.2d 566 (2nd Dept 1997)

!  Judd v. Vilardo, 57 A.D.3d 1127 (3d Dept 2008)

!  Leeman v. McNamee, 58 A.D.3d 918 (3d Dept 2009)

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Onthank (1877)

!  “deed granting ….the right to enter upon his land "for the purpose of building and maintaining a reservoir for water, and laying down and maintaining an iron pipe or conductor to carry the water from said reservoir to the water-tanks at the Portland station, and also the right to build and maintain blind and covered ditches to conduct the water to the said reservoir; the said iron pipe is to be laid at least two feet below the surface of the ground."

Onthank (1877)

!  “After the grantee had once laid its pipe and, thus selected the place where it would exercise its easement thus granted in general terms, what was before indefinite and general became fixed and certain, and the easement could not be exercised in any other place. This is confessedly so in reference to rights of ways granted in similar terms.”

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Onthank(1877)

!  “The language used in plaintiff's grant shows quite clearly that it was not intended that after the grantee had laid down a pipe, it should have the right to enter upon the land to lay down a larger pipe. The right granted was to enter upon the land, and lay down a pipe two feet below the surface, and to keep that pipe in repair, not to enter upon the land at any time, and dig up the soil for the purpose of laying down a larger pipe.”

Onthank(1877)

!  Here the easement holder was altering the easement, not the landowner

!  The easement was for pipes which required a fixed location to enjoy the right

!  The rule of law that comes from this case is:

!  Once the character of the easement is fixed, it can only be maintained at that level, not improved.

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Green v. Mann(2d Dept. 1997)

!  In 1905 an easement for a right of way was created by express grant across lake-front property. The easement was intended to permit the holders of the easement to cross certain property so as to obtain access to the lake, and to construct and use a dock.

!  Defendant constructed a bulkhead which interfered with the easement

!  Defendant was directed to remove the bulkhead

Green v. Mann

!  Note: This case was BEFORE Lewis v. Young

!  “Although the original grant does not specifically describe the easement, the record establishes that the plaintiffs utilized the same portion of the defendants’ property for over 30 years, and that the defendants acquiesced in this use. This long-time use, without objection by the servient tenement, establishes the location of the easement

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Judd v. Vilardo (3rd Dept 2008)

!  “This real property dispute, dating back to the early 1990s, concerns the precise location of an easement for ingress and egress (i.e., a right-of-way) across Coates Point, a 5.36-acre parcel of land that partially extends into Lake George in the Town of Ticonderoga, Essex County. The Point was subdivided in the 1980s necessitating rights-of-way for access from the highway to the subdivided lots in issue.”

Judd v. Vilardo

!  In 1988, Cole deeded the encumbered lot 15 to Vilardo, who tore down the existing cabins and built a year-round home in 1991 with landscaping and accessories that effectively blocked vehicular access over the right-of-way to lots 1-B and 2.

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Judd v. Vilardo

!  In 1985, (Martin) Thompson had undertaken a field survey of the Point as required by the Cole contract and had prepared the survey map (hereinafter the 1985 Cole/Thompson survey map). The court concluded, however, that questions of fact remained concerning the precise location of that right-of-way.

Judd v. Vilardo

!  the Moores at Supreme Court's suggestion in its prior decision; they [field notes] were utilized in 2006 by Donald Pidgeon, a licensed surveyor, to create a survey description of the precise centerline of the disputed easement. Pidgeon also prepared a survey map (revised in 2007) from Thompson's field notes, establishing the location of the easement across lot 15, consistent with the 1985 Cole/Thompson survey map. As Thompson attested in a 2007 affidavit, his field notes and survey map locate the easement existing in 1985 across lot 15 and allow access to the peninsula, i.e., lots 1-B and 2.

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Judd v. Vilardo

!  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.

Leaman v. McNamee (3rd Dept 2009)

!  In 1911, brothers James McNamee and Daniel McNamee purchased a parcel on Queechy Lake in Columbia County as tenants in common, and the relevant property has since remained in the family; plaintiffs are descendants of Daniel McNamee and defendant is a descendant of James McNamee.

!  In 1941, the surviving brother and the other brother's estate carved two separate parcels, each with a cottage, out of the original tract, and the deeds granted several easements in favor of plaintiffs' lot and burdening the lot now owned by defendant.

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Leaman v. McNamee (3rd Dept 2009)

!  "Excepting and Reserving from this conveyance, however, the use in common with said James McNamee, his heirs and assigns, of a certain well of water located upon the land herein conveyed, and of that portion of a road or private way leading to Route 295--State road--located upon the same land, and also the right and privilege of crossing said land by a foot path, as it now exists, to and from said well of water and to and from said road or private way."

Leaman v. McNamee

!  Basically, defendant contended that it permitted plaintiffs to drive vehicles upon a small section of his lot and then access their cottage over a footpath across defendant's lot to their cottage.

!  Plaintiffs countered that the entire area characterized by defendant as a footpath was a road upon which they could drive (passing within a few feet of defendant's cottage).

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Leaman v. McNamee

!  While the 1911 survey produced by plaintiffs provides considerable support for their position, it is not clear that the road was still in the same location or length in 1941 as depicted on that survey. Notably, that survey is not referenced in the easement description in the 1941 deeds.

!  Defendant's survey reflects that, by 2000, the road had changed from 1911; when that change occurred cannot be discerned as a matter of law from the submitted materials.

Leaman v. McNamee

!  “Finally, we note that, if the parties are unable to settle this case and resolution of the factual issues at trial results in a determination that the easement crosses defendant's entire lot, this appears to be a case where relocating the road from its current close proximity to defendant's residence might be appropriate.”

!  Summary Judgment was denied because there were too many factual issues

!  A trial would be the next step for the litigants if they did not settle amongst themselves

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The End.

!  Questions?

!  Comments?

!  Contact me afterward at [email protected] with further questions.

locating undefined easements...easements for utilities, pipelines, docks and other structures ! once...

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