Marsh v. Hogan

• Decision Date: 26 November 2008
• Docket Number: 504614
• Citation: Marsh v. Hogan, 56 A.D.3d 1090, 867 N.Y.S.2d 786, 2008 NY Slip Op 9322 (N.Y. App. Div. 2008)
• Parties: JAMES E. MARSH, Respondent, v. PATRICK HOGAN et al., Appellants.
• Court: New York Supreme Court — Appellate Division

56 A.D.3d 1090

867 N.Y.S.2d 786

2008 NY Slip Op 09322

JAMES E. MARSH, Respondent, v. PATRICK HOGAN et al., Appellants.

504614

Appellate Division of the Supreme Court of the State of New York, Third Department.

November 26, 2008.

Kane, J. Appeal from an order of the Supreme Court (Tait,

J.), entered December 26, 2007 in Tioga County, which granted plaintiff's motion for partial summary judgment.

Plaintiff owns a landlocked parcel abutting defendants' property. In 1985, to resolve his action to establish an easement by necessity, plaintiff entered into a settlement agreement with three of defendants' predecessors in title, including Charles Farrell. The settlement agreement created a right-of-way in favor of plaintiff over what is now defendants' property. Pursuant to that agreement, in 1990 Farrell obtained a survey of his property containing a proposed subdivision and filed the map in the County Clerk's office. The survey laid out a future public road that would form part of the right-of-way discussed in the settlement agreement, as well as a 90-foot easement connecting plaintiff's property to this proposed road. Only approximately one third of that road was ever built because Farrell abandoned his subdivision plans after completing only four of 15 proposed homes.

In 2004, Farrell sold his remaining property to defendants, who had notice of plaintiff's easement rights. Defendants built a house on their property, partially within the portion of unimproved land designated on the survey map for the future public road. When defendants saw plaintiff on their property and forbade him from further access, he commenced this action seeking, among other things, to determine his easement rights and remove the house and other structures from his right-of-way. Plaintiff moved for partial summary judgment declaring the validity of his easement, setting its boundaries as depicted in the 1990 survey and enjoining defendants from interfering with his use of and access to the right-of-way. Supreme Court granted the motion, finding that the settlement agreement and survey map created an easement. The court left for later determination the equitable considerations concerning the extent to which defendants' house encroaching on the easement may impair plaintiff's access to his property. Defendants appeal.

Supreme Court properly determined that plaintiff has an easement with boundary lines as laid out in the 1990 survey map. The settlement agreement created an easement by express grant, even though it did not state the precise location of the easement (see Wilcox v Reals, 178 AD2d 885, 886 [1991]; see also Willow Tex v Dimacopoulos, 68 NY2d 963, 965 [1986]). "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" (Hopper v Friery, 260 AD2d 964, 966 [1999] [citations...