Lewis v. Young

• Decision Date: 27 October 1998
• Citation: 705 N.E.2d 649,682 N.Y.S.2d 657,92 N.Y.2d 443
• Parties: , 705 N.E.2d 649, 1998 N.Y. Slip Op. 9254 Roger LEWIS, Respondent, v. Neda YOUNG, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 657

682 N.Y.S.2d 657

92 N.Y.2d 443, 705 N.E.2d 649, 1998

N.Y. Slip Op. 9254

Roger LEWIS, Respondent, v. Neda YOUNG, Appellant.

Court of Appeals of New York.

Oct. 27, 1998.

Morvillo, Abramowitz, Grand, Iason & Silberberg, P.C., New York City (John J. Tigue, Jr. and Edward M. Spiro, of counsel), for appellant.

Esseks, Hefter & Angel, Riverhead (Stephen R. Angel and Carmela M. Di Talia, of counsel), for respondent.

Chief Judge KAYE.

This battle between Southampton neighbors centers on an open question in New York law: can a landowner, without consent, relocate an easement holder's right of way over the burdened premises? We conclude that, under the particular circumstances presented, the landowner can move the right of way, so long as the easement holder's right of access and ingress is not impaired. We therefore reverse the Appellate Division order summarily directing restoration of the landowner's original driveway, and remit the matter to the trial court to determine remaining factual issues.

I.

Plaintiff Roger Lewis and defendant Neda Young own adjoining parcels of land in the Town of Southampton, both formerly owned by Herman and Jeanette Brown. In 1956, the Browns divided their plot into three parcels--a four-acre tract they retained for themselves, and two smaller properties they promptly sold. On February 2, 1956, the smallest parcel was sold to Marygaele and Theodore Jaffe. Seven months later, on September 14, 1956, Donald and Gertrude Katz purchased the second parcel. Neither parcel had direct access to the public roadway, and both deeds therefore granted rights of way over the Brown property to South Ferry Road. ¹

The Jaffe deed actually conveyed three easements. First, and most pertinently, it provided for "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." Two additional easements, one for a 30-foot right of way and another for a 15-foot right of way, were also conveyed, each defined by exact distances, measured to the hundredth of a foot and identified by reference to high water lines, monuments, neighboring properties and other landmarks. On October 28, 1990, defendant Neda Young and her late husband purchased the four-acre tract from Donald and Joan Brown Diamond, who had themselves acquired the property from the Browns in 1969. The Youngs' deed referenced all the foregoing easements.

The Youngs purchased the property with the intention of substantially improving it by razing the then-existing small cottage and replacing it with a large new residence, adding an in-ground swimming pool and building a tennis court. According to Mrs. Young, prior to commencing construction she and her husband met with their neighbors to discuss their plans. Allegedly, neither the Katzes nor the widowed Mrs. Jaffe voiced any objection--indeed, Mrs. Jaffe gave verbal consent to the renovations, including relocation of the existing driveway in order to make room for the tennis court. In August 1992, Mrs. Jaffe died.

Construction of the Youngs' residence, including their own separate entryway from South Ferry Road to their new home, started in the spring of 1993. Later that year, in November or December, they began building their tennis court, which was partly situated in the path of the main driveway. Consequently, the Youngs relocated that driveway, placing it closer to the boundary line separating the three parcels. 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.

On December 1, 1993, in the midst of the Youngs' renovation efforts, plaintiff Roger Lewis, Mrs. Jaffe's nephew, received the deed to her property. By letter dated December 9, plaintiff's attorney, also representing the Katzes, informed the Youngs that his clients would agree to relocation of the driveway if they would perform certain renovations, including refinishing the driveway with a permanent hard surface, installing entrance pillars and landscaping the driveway with evergreens on both sides. According to Mrs. Young, they agreed to do so once construction of their new home was completed, but were delayed by Mr. Young's death in March 1994 and poor weather conditions. The tennis court was completed in May 1994.

One month later, on June 23, 1994, plaintiff's attorney sent a second letter demanding that, within 10 days, defendant improve the relocated driveway as had been agreed. Unless that were done, the letter warned, his clients, at defendant's expense, would "proceed in putting the driveway back where it was originally," despite the destruction of the tennis court, which stood in the way. Defendant alleges that, in addition, plaintiff soon after demanded that she pay him $60,000, which she refused. Plaintiff denies this assertion.

The battle escalated even further when, on February 1, 1995, plaintiff filed suit seeking a declaration of the parties' rights regarding the easement and a permanent injunction compelling defendant to remove the tennis court and return the driveway to its original location. Defendant alleges that, at this time, construction of her home--including its new entryway--had not yet been completed, and the combination of weather and the pending litigation delayed finishing the relocated driveway in accordance with the agreed-upon terms. Defendant answered the complaint with nine affirmative defenses and three counterclaims. ² Plaintiff moved for partial summary judgment, seeking a declaration of his rights and dismissal of defendant's affirmative defenses and counterclaims. In opposition, defendant submitted affidavits of herself, her son and his friend attesting to Mrs. Jaffe's consent to the driveway relocation.

Supreme Court granted plaintiff's motion for partial summary judgment and dismissed defendant's counterclaim for reformation, holding that plaintiff had an easement over defendant's property which defendant had no right to move and that CPLR 4519 (the Dead Man's Statute) precluded any testimony regarding Mrs. Jaffe's alleged oral consent. The court found as a matter of law that "since the location of the subject easement remained fixed for at least thirty-seven (37) years (from 1956-1993) it could not be relocated without plaintiff's consent." Plaintiff then sought an order compelling defendant to restore the driveway to its original condition or allow him to complete the restoration at defendant's expense--relief the court granted.

For much the same reason the Appellate Division affirmed: although the location of the easement was not specified in the 1956 deed that created it, use of the driveway for 37 years without objection by the servient tenement fixed its location, and as such, its course could not be changed without consent. The Appellate Division noted, moreover, that summary judgment was proper because plaintiff established that he did not consent to the relocation and defendant failed to proffer evidence raising an issue of fact. ³ We now reverse.

II.

Analysis begins with a timeless first principle in the law of easements, articulated by this Court in Bakeman v. Talbot, 31 N.Y. 366 in 1865 and recently reasserted with equal vigor in Dowd v. Ahr, 78 N.Y.2d 469, 577 N.Y.S.2d 198, 583 N.E.2d 911: express easements are defined by the intent, or object, of the parties.

While we have not previously considered the particular question now before us, we have several times passed upon questions involving the type of easement at issue--a right of way. As a rule, where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder (Bakeman v. Talbot, 31 N.Y., at 371, supra; Grafton v. Moir, 130 N.Y. 465, 470-472, 29 N.E. 974 [easement granting "right of way through and over the carriage or alley-way in the rear of the * * * premises" held not to be a reservation of the "alley itself" but only "the right of way over the alley-way or carriage-way"] ). As this Court observed more than a century ago,

" 'A right of way along a private road belonging to another person does not give the [easement holder] a right that the road shall be in no respect altered or the width decreased, for his right * * * is merely a right to pass with the convenience to which he has been accustomed.' " (Grafton v. Moir, 130 N.Y., at 472, 29 N.E. 974, supra [quoting Goddard, Easements, at 332]; see also, Herman v. Roberts, 119 N.Y. 37, 42, 23 N.E. 442.)

Thus, in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired (see, e.g., Dalton v. Levy, 258 N.Y. 161, 167, 179 N.E. 371 [narrowing of a right of way by construction of a building on it]; Grafton v. Moir, 130 N.Y., at 471-473, 29 N.E. 974, supra [covering over of alleyway]; Andrews v. Cohen, 221 N.Y. 148, 155, 116 N.E. 862 [covering over of passageway]; Brill v. Brill, 108 N.Y. 511, 516-517, 15 N.E. 538 [fences and gates]; Cunningham v. Fitzgerald, 138 N.Y. 165, 171, 33 N.E. 840 [changing street grade impaired access, and therefore required easement holder's consent] ). As a matter of policy, affording the landowner this unilateral, but limited, authority to alter a right of way strikes a balance between the landowner's right to use and enjoy the property and the easement holder's right of ingress and egress (see, Paine v. Chandler, 134 N.Y. 385, 391; , 32 N.E. 18 5 Warren's Weed, New York Real Property, Easements, § 1.01[2] [4th ed.] ).

While enjoying a limited...