Tarantelli v. Tripp Lake Estates, Inc.

• Decision Date: 12 June 1970
• Citation: 63 Misc.2d 913,314 N.Y.S.2d 21
• Parties: Chauncey J. TARANTELLI and Edythe Pratt Tarantelli v. TRIPP LAKE ESTATES, INC.
• Court: New York Supreme Court

Page 21

314 N.Y.S.2d 21

63 Misc.2d 913

Chauncey J. TARANTELLI and Edythe Pratt Tarantelli v. TRIPP LAKE ESTATES, INC.

Supreme Court of New York, Warren County.

June 12, 1970.

Earl F. Matte, Glens Falls, for plaintiffs; Daniel T. Smith, Glens Falls, of counsel.

Silverman & Silverman, by McPhillips, Fitzgerald & Meyer, Glens Falls, for defendant; Martin A. Meyer, Glens Falls, of counsel.

CARROL S. WALSH, Jr., Justice.

The plaintiffs commenced two actions against the defendant, titles in both actions being the same.

Both actions are based on certain covenants contained in a deed from Frank W. Smith and wife and Nelson R. Fox and wife, as grantors to Clayton L. Jones, as grantee, which deed is dated August 24, 1926 and recorded in the Warren County Clerk's Office on September 1, 1926 and Book 169 of Deeds at page 394. The issues involved being common to both actions, they were tried together before this court without a jury and the decision of this court applies to both actions.

In the year 1926 the aforementioned Smith and Fox were the owners of a tract of land situate partly in the Town of Warrensburg and partly in the Town of Chester, Warren County, New York, on which they created a subdivision known as Tripp Lake Subdivision. The tract was subdivided into lots and a map of the subdivision was prepared and filed. On August 24, 1926 Smith and Fox conveyed Lot 27 in the subdivision to Clayton L. Jones, which said lot, after several mesne conveyances, was conveyed to the plaintiffs by two deeds, one dated August 6, 1952 and the other October 27, 1952, the plaintiffs thereby becoming the successors in interest to the said Clayton L. Jones. By deed dated January 14, 1928, duly recorded in the Warren County Clerk's Office, the entire parcel comprised of Tripp Lake Subdivision was conveyed by Frank W. Smith and wife, who had previously obtained the interest therein of Nelson R. Fox, to the defendant excepting, however, from said conveyance certain specified lots and also certain other exceptions and reservations. Therefore, the defendant is the successor in interest to the original grantors, Smith and Fox.

The deed of Smith and Fox to Jones contained the following provisions:

'To induce the acceptance of this conveyance the said Frank W. Smith and Nelson R. Fox for themselves, their heirs, executors and administrators, etc., do covenant and agree as follows:

1. That they shall carry running water in a proper pipe or pipes either at the front or rear of each of said lots. Said water pipe to be installed in any event not later than May 15, 1927; but if said party of the second part or his assigns shall erect a house, bungalow or cottage on either of said lots before November 1, 1926, then such water would be carried to said lot before the ground is closed by frost the present fall.

2. That they will carry a pole and wire line, properly installed for the transmission of electric current, along the front or rear of said lots, as soon as the Adirondack Power & Light Corporation string their distribution lines over their right-of-way on the Tripp Lake property'.

The water pipes were duly installed at Lot 27 and water was carried and is still being carried to Lot 27, owned by plaintiffs, through these pipes and other pipes from a source of supply located on other lands which once belonged to Smith and Fox. A line of poles was erected apparently by Smith and Fox leading from a source of power on a certain power and light corporation pole, along the rear of lots 22 through 26, inclusive, to Lot 27, on which poles a wire was strung bringing electric current to the premises of the plaintiffs. In 1961 this line of poles with the wire strung along the same was blown down and to date it has not been repaired or replaced. In 1955 the water supply to Lot 27 was shut off by defendant, it being alleged by plaintiff that the supply was cut off for about two years and denied by the defendant that the supply was shut off for that length of time, the defendant claiming that it was shut off for only about five weeks. The plaintiffs contend that the covenants set forth above, contained in the 1926 deed from Smith and Fox to Jones are affirmative covenants running with the land obligating the defendant, as successor in interest to the original grantors to furnish water to the plaintiffs and to furnish a pole and wire line, and to maintain and repair and replace such line when necessary, for the transmission of sufficient electric current to the lot of the plaintiffs. The plaintiffs seek damages as a result of the defendant shutting off the water in 1955 and in not restoring the supply of water until July of 1957, preventing plaintiffs from using and enjoying the said premises and preventing them from renting the same during that period, and also demand a permanent injunction against defendant restraining and enjoining it from shutting off and refusing to supply water to the plaintiffs for use on their said premises without charge. Plaintiffs also seek damages by reason of defendant's failure to replace the pole and wire line or to grant the power company an easement to go upon the lands of the defendant to erect a pole and wire line, and plaintiffs also seek a permanent injunction restraining and enjoining defendant from refusing to supply a pole and wire line and requiring the defendant to carry a pole and wire line over the right-of-way of the defendant's property to the plaintiffs' property. Defendant denies plaintiffs' allegations and also submits certain defenses.

The issue is whether or not affirmative covenants real, running with the land, were created by the 1926 deed of Smith and Fox to Jones, and if construed to be such, whether or not such covenants obligate the defendant as successor in interest to the original grantors. Under the law of the State of New York an affirmative covenant does not run with the land and cannot be enforced against a subsequent owner of the servient estate, either at law or in equity. There are, however, certain exceptions to this rule. (Miller v. Clary, 210 N.Y. 127, 103 N.E. 1114). To come within the exception to the rule, it must appear and be established that (1) the original covenantor and covenantee intended such a result; (2) there has been a continuous succession of conveyances between the original covenantor and the party now sought to be burdened; and (3) the covenant touches or concerns the land to a substantial degree (Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240, 196 N.Y.S.2d 945, 164 N.E.2d 832). It has been established in the case before us that there has been a continuous succession of conveyances between the original covenantor and the party now sought to be burdened so that we need concern ourselves no further with this point. Taking up the question of intent between the original covenantors and the original covenantee, we must look to the language in the original deed, surrounding circumstances, the nature of the covenants, whether or not the covenants formed a part of a scheme of development, and whether or not they were inadequate if binding only upon the original parties. As to the language in the deed, the original covenantors set forth that to induce the acceptance of the conveyance, they, for themselves, their heirs, executors, administrators, successors and assigns would carry running water in a proper pipe or pipes either at the front or rear of the lot and that would carry a pole and wire line, properly installed for the transmission of electric current, along the front or rear of the lots. Both obligations were performed by the original covenantors. It is to be noted that there is no mention of maintaining, repairing or replacing either of such lines. That easements were granted benefiting Lot 27 over and across other portions of the land in the subdivision, from the source of supply of water and electricity, there...