Huggins v. Castle Estates, Inc.

• Decision Date: 04 March 1974
• Citation: 352 N.Y.S.2d 719,44 A.D.2d 25
• Parties: Eric H. HUGGINS et al., Appellants, v. CASTLE ESTATES, INC., Respondent.
• Court: New York Supreme Court — Appellate Division

Page 719

352 N.Y.S.2d 719

44 A.D.2d 25

Eric H. HUGGINS et al., Appellants, v. CASTLE ESTATES, INC., Respondent.

Supreme Court, Appellate Division, Fourth Department.

March 4, 1974.

Kernan & Kernan, Utica, for appellants, Earle C. Bastow and John E. Hunt, Utica, of counsel.

Durr & Keinz, Utica, for respondent, Donald E. Keinz, Utica, of counsel.

Before MARSH, P.J., and WITMER, MOULE, SIMONS and GOLDMAN, JJ.

OPINION

SIMONS, Justice:

Appellants are the owners of residential property in a subdivision owned and developed by respondent. Respondent sold a house and lot on Imperial Drive to Mr. & Mrs. Huggins for $27,000 in November, 1968 and sold Mr. Lawrence a lot two doors north on Imperial Drive in August, 1968 for $5,000. Their deeds restrict the property to residential use. Mr. Lawrence constructed a house on his lot and transferred the property into tenancy by the entirety when he subsequently married. The deeds executed by respondent contained no metes or bounds of the lots but referred to them solely as lots #14 and #16 respectively of Section 6 of Castle Estates as shown on a duly filed map and 'subject to all restrictions, covenants, easements, and rights of way of record.' Among other things, the map showed definitive boundaries of the lots, streets and utilities, and described and delineated the set-back line for the houses. Part of Section 6 shown on the map was the land on the easterly side of Imperial Drive across the street from appellants' property. It was described as property of Castle Estates, Inc. and underneath that wording, in letters of equal size, was the printed legend 'R--2 Zoning'. R--2 is a two-family residence zone under the Town of New Hartford zoning ordinance. In 1968 R--2 was the existing zoning for Section 6, a classification successfully urged upon the Town Board by Mr. Kenny, the respondent's president, at the time he was developing the property during the years 1958--1963.

It is this area, across the street from appellants, which respondent now proposes to sell for $45,000 to Ibbotson Motors, Inc. for use as an automobile sales and service facility to be constructed at an estimated cost of $100,000. Such a sale was made possible when, in June and July, 1969 during consideration of a general zoning revision of the town, the zoning of this parcel (now referred to for convenience as the Ibbotson property) was changed, apparently without notice, from residential to commercial.

Appellants, unaware of any change in the zoning until the Ibbotson proposal developed in 1971, now ask the court to impress a negative easement requiring residential use of the Ibbotson property opposite their homes on Imperial Drive or, in the alternative, that respondent be estopped from deviating from residential development of it. They testified that when they bought their lots, Mr. Kenny assured them that this property would be developed only for residential use. Respondent contends that there is no contractual restriction on the commercial development of the Ibbotson property and even if Mr. Kenny represented that the land was limited to residential use, any such oral representation is not binding upon it.

Negative easements are explained in Trustees of Columbia College v. Lynch, 70 N.Y. 440, 447--448:

'The right sought to be enforced here is an easement, or, as it is sometimes called, an amenity, and consists in restraining the owner from doing that with, and upon his property, which, but for the grant or covenant, he might lawfully have done, and hence is called a negative easement, as distinguished from the class of easements which compels the owner to suffer something to be done upon his property by another.'

As a part of the consideration for the sale of some of his property, a grantor may impose a restriction upon the use of his remaining property. The question here is whether the appellants established by the evidence that the respondent bound itself to limit development of the Ibbotson property to R--2 zoning uses by such a negative easement.

It is contended by respondent that the only building restriction on the Ibbotson property is to be found in the oral representations by Mr. Kenny and in the unsigned Subdivision Map, and that these are unenforceable for failure to comply with the Statute of Frauds. The statute (General Obligations Law § 5--703) provides that an estate or interest in real property may not be created except by a conveyance in writing subscribed by the grantor. But it has long been established that a reference in a deed to a particular filed plat makes the plat in effect part of the conveyance (Seamans v. Gulf Refining Company, 237 App.Div. 202, 260 N.Y.S. 876, affd. 264 N.Y. 433, 191 N.E. 500; Glover v. Shields, 32 Barb. 374; and see generally Crabtree v. Elizabeth Arden Sales Corp., 305 N.Y. 48, 55--56, 110 N.E.2d 551). The agreement was set out in writing and the unsigned portion, the plat, was unequivocally referable to appellants' deeds, overcoming any suggestion of fraudulent intention and satisfying the Statute of Frauds. Although parol evidence is permissible, and may in some cases be necessary, to connect an unsigned document with that which is signed, the writings are undisputably connected here and oral testimony was not necessary for that purpose. The deed was meaningless without reference to the plat, for it contained no dimensions or courses for the lots, no data on the streets or utility locations and no building set-back restrictions. The limiting and descriptive terms of the plat were enforceable with as much effect as if they were expressly included in the deed. The complete agreement between the parties when examined in light of all the existing circumstances, imposed a negative easement of 'R--2 Zoning' on the respondent's land across the street from appellants. The rule is stated in Vol. II, American Law of Property, § 9.25, p. 408:

'In many cases the written provisions creating the equitable servitude are not found in the deed itself, but were inserted by the subdivider in a plat of the subdivision which has been duly recorded. In such cases, if the subdivider subsequently conveys the lots by reference to the plat, the written building restrictions appearing on the plat become incorporated by reference into the deed. This has the effect of satisfying the requirements of the statutes of frauds to the same extent as if these building restrictions had been expressly repeated in each deed by the subdivider.'

Respondent contends that the intention to establish a restrictive covenant must be clearly shown and the claimed restriction fails on that ground. In interpreting the documents it should be borne in mind that the grantor prepared them. It alone is responsible for the subdivision plan and the documents and deeds implementing it and under those circumstances an easement may be more readily implied in favor of the grantee (25 Am.Jur.2d, Easements and Licenses, sec. 24). If the legend had been stated in the familiar language of easements, there would be less doubt of the parties' intention. Because it was not, the Trial Court appropriately received parol evidence on the subject to resolve any ambiguity (Balkum v. Marino, 299 N.Y. 590, 86 N.E.2d 109).

This extrinsic proof of the surrounding circumstances is persuasive evidence that the respondent agreed to be restricted to residential development of the Ibbotson property by the legend on the map, just as appellants are bound by the residential restrictions in their deeds (cf. Brown v. Fred J. Hovey, Inc., 284 App.Div. 1094, 136 N.Y.S.2d 263). It was established that the subdivision as originally conceived by respondent was for general residential development. As already noted, Mr. Kenny successfully urged that position at early zoning hearings. Subsequently, he proposed various zoning changes for the subdivision to the Town Board but it does not appear that he ever publicly or privately took the position that the Ibbotson tract should be changed from residential to commercial. Furthermore, although Mr. Kenny frequently participated in zoning board matters dealing with his property, it is significant that neither he nor any other representative appeared at the 1969 hearings at which the Ibbotson property was rezoned for commercial use. The inference may be drawn from that circumstance that the zoning change was inconsistent with respondent's longheld intentions for development as expressed to appellants, an inference not weakened by the fact that the corporation sought to capitalize on this unexpected zoning windfall after Mr. Kenny's death in 1969. Several maps prepared and used by respondent from as early as 1959 consistently indicate an intention that the Ibbotson property be developed residentially. On those early maps the Ibbotson tract was platted into building lots. Later these lot lines was removed and revised plats prepared, but when this was done the R--2 legend was placed on the map, indicating residential use for that parcel.

This evidence of respondent's intended use of the property at the time of the sales to appellants is bolstered by Mr. Kenny's several statements on the subject to interested and disinterested witnesses. The Trial Court found as a fact that the representations were made by Mr. Kenny on behalf of respondent corporation (the stock of which was wholly owned by him and his wife), and the oral representations give vitality and substance to the negative easement expressed by the legend on the plat. Thus, in response to direct inquiries about the Ibbotson property by buyers made at the time of their respective purchases, Mr. Kenny told Mr. & Mrs. Huggins that he intended to develop the property on the opposite side of Imperial Drive (the Ibbotson property) with 'a row of houses across the front' and he assured appellant Lawrence that there would be 'residential building' across the street. Mr. Walsh, the owner of lot #15, located between the two properties of a...