Estate of Thomson v. Wade

• Decision Date: 28 May 1987
• Parties: , 509 N.E.2d 309 In the Matter of the ESTATE OF A. Graham THOMSON, Deceased, et al., Appellants, v. Judith A. WADE, Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 614

516 N.Y.S.2d 614

69 N.Y.2d 570, 509 N.E.2d 309

In the Matter of the ESTATE OF A. Graham THOMSON, Deceased et al., Appellants, v. Judith A. WADE, Respondent.

Court of Appeals of New York.

May 28, 1987.

Ronald C. Berger, Charles T. Major and Maura A. Flood, Syracuse, for appellants.

Lawrence Katzman, Watertown, for respondent.

OPINION OF THE COURT

PER CURIAM.

Plaintiff, executrix of the estate of A. Graham Thomson, and defendant, Judith Wade, own adjoining parcels of land on the St. Lawrence River in the Village of Alexandria Bay. Plaintiff's property, on which a motel has been built, is known as the annex parcel and fronts on the river. Defendant owns the unimproved inland parcel, which is adjacent to plaintiff's and borders the public road. Plaintiff claims an easement over defendant's parcel to the public road. Both parcels were previously owned by Edward John Noble, who, in 1945, separately conveyed them to different parties. Although Noble had always used defendant's parcel to gain access to the public road from the annex parcel, in transferring the annex parcel to plaintiff's predecessor-in-interest, he did not convey an express easement appurtenant over defendant's parcel for the benefit of the annex parcel. When Noble subsequently conveyed defendant's parcel to defendant's predecessor-in-interest, however, he "excepted and reserved" to himself personally, and to plaintiff's predecessor-in-interest, a right-of-way across defendant's parcel. In the ensuing years, members of the public generally, and the various owners of the annex parcel, including plaintiff who purchased the parcel in 1954, used this right-of-way over defendant's land to reach the public road or the waterfront. When, in 1978, plaintiff erected a 50-room motel on the annex parcel, threatening an increase in traffic across defendant's property, defendant immediately sought to bar plaintiff's use of her property to benefit the annex parcel. Plaintiff thereafter acquired from Noble's successor-in-interest, the Noble Foundation, a quitclaim deed to the right-of-way over defendant's property that Noble had reserved to himself.

In this declaratory judgment action, plaintiff claims title to an easement over defendant's property by express grant, relying not on its own deed to the annex parcel, but on the purported intent of Noble that the annex parcel benefit from an easement over defendant's property, as evidenced by his conveyance of defendant's parcel subject to a right-of-way in himself and in plaintiff's predecessor-in-interest. Plaintiff also relies on the express conveyance of Noble's personal right-of-way in the quitclaim deed from the Noble Foundation. The Appellate Division concluded that no express easement was created here, 117 A.D.2d 996, 499 N.Y.S.2d 541. We agree.

It is axiomatic that Noble could not create an easement benefiting land which he did not own (see, 3 Powell, Real Property, Easements by Express Conveyance, p 407). Thus, having already conveyed the annex parcel, he could not "reserve" in the deed to defendant's predecessor-in-interest an easement appurtenant to the annex parcel for the benefit of plaintiff's predecessor-in-interest. The long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called "stranger to the deed", does not create a valid interest in favor of that third party (see, Tuscarora Club v. Brown, 215 N.Y. 543, 109 N.E. 597; Beardslee v. New Berlin Light & Power Co., 207 N.Y. 34,...