Hopper v. Friery

• Decision Date: 29 April 1999
• Citation: Hopper v. Friery, 689 N.Y.S.2d 305, 260 A.D.2d 964 (N.Y. App. Div. 1999)
• Parties: LOIS B. HOPPER, Respondent,<BR>v.<BR>JAMES M. FRIERY, Appellant.
• Court: New York Supreme Court — Appellate Division

260 A.D.2d 964

689 N.Y.S.2d 305

LOIS B. HOPPER, Respondent,

v.JAMES M. FRIERY, Appellant.

Graffeo, J.

Decided April 29, 1999.

Mikoll, J. P., Mercure, Crew III and Yesawich Jr., JJ., concur.

Graffeo, J.

Plaintiff commenced this action against defendant, an adjacent landowner, seeking, inter alia, a declaratory judgment that she had the right to an easement over a portion of defendant's property. Plaintiff moved for summary judgment, which was granted by Supreme Court. Defendant now appeals.

In December 1963, defendant and Frank Humphreys purchased undeveloped real property along the east side of Otsego Lake in Otsego County from Fenimore Riding Camps, Ltd. The deed provided for "the perpetual use of the driveway as it now exists running southerly from the county highway across the southeasterly portion of the premises". The property was divided into four parcels in 1968; Humphreys retained the northern most parcel, defendant held the adjoining parcel directly to the south, and the remaining two parcels further to the south were acquired by Robert Crandall and Jane Crandall and Robert Bookhout and Wahneta Bookhout, respectively. In May 1968, prior to the development of the property, the owners of all four parcels entered into an agreement whereby they granted to each other the right to use the aforesaid "road or driveway and any extensions thereof to their respective properties, for all ordinary purposes of ingress and egress".

Between 1969 and 1972, a road/driveway was constructed to provide improved vehicular access in connection with the erection of structures on the parcels. As a result of these improvements, the road/driveway began at County Route 31 and arched southward through all four parcels, connecting to the existing driveway at a westerly point in defendant's property and eventually reconnecting with the County highway at its most southerly point. The owners shared in the construction and maintenance costs of the road and, in addition, defendant, the Bookhouts and the Crandalls created parking spaces behind their respective camps, the cost of which was borne individually. Defendant's parking area, which was located completely on his property and behind his house, extended off the side of the road and terminated at the edge of Humphreys' property (the northern boundary line of defendant's property). In May 1992, Humphreys conveyed his parcel to plaintiff subject to the 1968 agreement. Thereafter, defendant placed a fence blocking access to his "parking space" which prompted plaintiff to commence this action.

Plaintiff asserts that she is entitled to an easement with respect to the paved area which defendant claims is his parking space by virtue of the 1968 agreement between the parties, as well as the 1963 and 1968 deeds to Humphreys, plaintiff's predecessor-in-title, which provided for the "perpetual use of the driveway". While defendant acknowledges that the road/ driveway is subject to an easement in favor of all property owners, he maintains that the area in question was not part of the road, nor was it used for ingress or egress; rather, it is merely a parking area situated on his property and has been used exclusively by him.

The extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties (see, Phillips v Jacobsen, 117 AD2d 785, 786; see also, Serbalik v Gray, 240 AD2d 999, 1000). Further, where the easement expressly exists...