Warren v. Protano, Inc.

• Decision Date: 18 July 1956
• Parties: Roderick M. WARREN, individually and as President of Mamaroneck Knolls Association and on behalf of all other property owners in the sub-division or section of the Village of Mamaroneck, Town of Mamaroneck, County of Westchester, New York, known as Mamaroneck Knolls, similarly situated, Plaintiffs, v. PROTANO, Inc., Guy R. Protano, individually and as President of Protano, Inc., Fred Girardi Construction Corp. and Village of Mamaroneck, Defendants.
• Court: New York Supreme Court

Page 686

155 N.Y.S.2d 686

Roderick M. WARREN, individually and as President of Mamaroneck Knolls Association and on behalf of all other property owners in the sub-division or section of the Village of Mamaroneck, Town of Mamaroneck, County of Westchester, New York, known as Mamaroneck Knolls, similarly situated, Plaintiffs, v. PROTANO, Inc., Guy R. Protano, individually and as President of Protano, Inc., Fred Girardi Construction Corp. and Village of Mamaroneck, Defendants.

Supreme Court, Special Term, Westchester County, Part II.

July 18, 1956.

Nields & Woodle, White Plains (Joseph Cass Woodle, White Plains, of counsel), for plaintiff.

Jerome N. Wanshel, New York City, for Protano, Inc., and Fred Girardi Const. Corp.

Anthony Sansone, Mamaroneck, for Village.

EAGER, Justice.

This action (resulting from due consolidation of two actions) was tried before the undersigned without a jury. The action seeks judgment declaring, for the benefit of owners of property in a real estate subdivision the existence and validity of an alleged easement restricting the use of a strip of land, one-foot wide, bounding in part the subdivision; and a judgment enjoining and restraining the defendants from continuing a certain street upon, across, and over the said strip. The actions were dismissed at the close of plaintiffs' case as against Guy Protano individually.

The subdivision of land known and designated as 'Mamaroneck Knolls' and hereinafter referred to as the 'Knolls' was owned and developed, starting in 1927, by Mamaroneck Knolls, Inc., a New York corporation. A subdivision map of the land (hereby received as plaintiffs' exhibit 15) was filed in the office of Register of Westchester County on March 14, 1927, and an amended subdivision map of the land was filed in the office of said Register on June 3, 1927. By the maps, the lands were subdivided into lots, parcels and streets, and thereon appears a certain lot marked 'Reserved', a lot marked '20' Reserve Strip'; and also a strip of land, designated as '1.0' reserve strip' running around the boundary of the subdivision for a greater portion of such boundary. Certain streets laid out on the map, including Raleigh Road, purport on the map to dead-end at said strip, but there is no provision upon the map for any turn-around at the places where the streets purport to stop at the strip. The plaintiffs claim that the one-foot reserve strip was intended by the developer to be used as a means of keeping the Knolls private, safe and secluded and that, among other purposes, it was intended to prevent and has the effect of preventing the building of through roads or highways running on to adjoining lands.

In August, 1927, Mamaroneck Knolls, Inc., executed and filed in the office of the Register of Westchester County, a Declaration subjecting certain of the parcels of realty in the Knolls to certain restrictions, conditions, covenants, and agreements as to the use thereof, between Mamaroneck Knolls, Inc., and subsequent owners of the property. The Declaration provides that the restrictions run with the land and are made for the benefit of subsequent owners of lots as well as for the benefit of Mamaroneck Knolls, Inc., and its successors. The various deeds conveying lots to individuals were expressly made subject to the covenants, conditions, agreements and restrictions contained in the Declaration. Among other things, the Declaration prohibits the use of the land except for dwellings, containing a cellar, at a cost of not less than $7,500; provides for specific setbacks; prohibits more than one dwelling on any parcel of land; provides as set forth therein for corner lots; prohibits establishment of any business and prohibits poultry houses; provides that plans and specifications showing every detail of construction were to be approved by Mamaroneck Knolls, Inc.; and reserves to Mamaroneck Knolls, Inc. the right to annul or modify any of the covenants and restrictions. A number of lots in the Knolls were sold by Mamaroneck Knolls, Inc. with specific reference to the map and Declaration. There were 38 private one-family two-story homes built on these lots, mostly in 1928 and 1929, and they are now occupied as private residences.

On May 22, 1946, the one-foot reserve strip was conveyed to the defendant Village of Mamaroneck pursuant to judgment rendered in an in rem tax foreclosure proceeding. The plaintiffs allege and admit that the Village thereby obtained legal title to said strip of land. Subsequently and in 1954, the Board of Trustees of the Village of Mamaroneck adopted a resolution purporting to dedicate the portion of the one-foot strip, adjacent to the southerly end of Raleigh Road, to highway purposes and purporting to extend the said Raleigh Road, on the official map of the Village, over and across the one-foot strip. Some time thereafter defendants Protano, Inc. and Fred Girardi Construction Corporation did enter upon the one-foot strip where it dead-ended Raleigh Road, breached and removed a portion of a stone wall extending along such strip and proceeded to continue Raleigh Road so that it would extend on and through property owned by Protano, Inc. These acts of Protano, Inc. and Fred Girardi Construction Corp., done for the purpose of extending Raleigh Road over and across the one-foot strip, were with due authority from the Village which now owns the strip.

The plaintiff Roderick M. Warren owns an undivided interest in a certain lot (Lot 21) situate in the Knolls, abutting on Knollwood Ave. The said lot does not abut on Raleigh Road and is situate 700 or more feet from the point where the same is dead-ended by the one-foot strip. He brings these actions individually and as president of Mamaroneck Knolls Association and on behalf of all other property owners in the Knolls for judgment declaring the one-foot strip to be a reserve strip for the purpose of keeping and maintaining the Knolls a secluded residential area, declaring the lot owners therein to have an easement, interest or equity in said reserve strip for this purpose, and declaring that the same may not be conveyed, dedicated or used for highway purposes or for any purpose in contravention to the alleged easement, interest or equity of plaintiffs therein. Specifically, the plaintiffs seek to have declared invalid all proceedings on the part of the Village for the extending of Raleigh Road over the one-foot strip and to enjoin defendants from laying out a street over the said strip where it dead-ends Raleigh Road.

It is to be noted that the action is not one to enforce a particular express restrictive covenant. The position of the plaintiffs is that they have an easement in the one-foot strip barring an owner thereof from extending those streets located in the Knolls over and across the strip. It is true that the owner of lands may restrict or limit the use thereof to the benefit of other lands. Such a restriction or limitation is ofttimes referred to as creating a negative easement. It is said that such easements generally arise out of restrictive covenants or covenants as to use (See 9 R.C.L. 'Easements', Section 7, p. 740). '* * * when a right 'consists in restraining the owner from doing that with, and upon, his property which, but for the grant or covenant, he might lawfully have...