270 A.D. 1048 | N.Y. App. Div. | 1946
Submission of a controversy upon an agreed statement of facts. The plaintiff is the owner in fee of certain shore front property described in Exhibit 4. Defendants are the owners and a mortgagee of land situated nearby. The controversy is as to whether or not defendants are possessed of easements entitling them to the use of the shore front land. Judgment directed for plaintiff, without costs, as demanded in the submission, against all defendants except those interested in lots numbers 36, 38, 40, 42, 44, 46, 48 and 60, As to the last-mentioned defendants, the submission is dismissed, without costs, on the ground that the stipulated facts in relation to the conveyances are insufficient upon which to make, a determination. In respect of lots numbers 37, 41, 49, 53, 54, 56, 65, 68, 69, 70, 72 and 73, the easements were granted by conveyances from the common grantor, but continuance of the rights thereunder was conditional. The condition^ were not fulfilled and the easements were extinguished. In respect of lots numbers 35, 39, 43, 45, 47, 51, 52, 55, 57, 58, 59, 61, 62, 63, 64, 67, 71 and 74, the conveyances which purport to grant easements were executed and delivered after the grantor had parted with title to the fee and had no estate in the shore front property. The agreement between several defendants and the common grantor modifying the conditions of the easements was ineffectual and not binding on the plaintiff, in view of the fact that the common grantor had conveyed the fee to the shore front prior to the time of the making of said agreement. Lewis, P. J., Johnston, Adel and Nolan, JJ., concur; Hagarty, J., dissents in part, with the following memorandum: Interlaken Realty Company, hereinafter referred to as Interlaken, owner of a tract originally consisting of approximately 437 acres of land, including a large lake, on July 17, 1941, conveyed to defendant H. Sa B. Housing Corp., hereinafter referred to as H. & B., twelve lots designated by number. These lots were part of a proposed development known as Oakridge Gardens, which development was to consist, in all, of thirty-nine lots. This was the first of a series of conveyances of lots in Oakridge Gardens by Interlaken to H. & B., which lots, Together with easements in favor thereof, were thereafter conveyed by the latter to individuals, some of whom are defendants. The deed impressed perpetual easements on retained property of Interlaken running in favor of these twelve lots, viz., (1) to use the waters of the lake which is shown on a described map which sets forth the tract of Interlaken and (2) for access to the lake over a parcel of land characterized as the “ shore front.” The shore front is a strip of land lying between a highway and a fraction of the frontage of the lake. The deed conditioned continuance of these easements on payment of an annual sum of money ranging from $150 for the first year to $600 for the fourth and subsequent years as sums “ arbitrarily fixed as the cost of supervision and maintenance of the ‘ Lake ’ in a safe and sanitary condition 9 9 The sums were payable “ either to the grantor [Interlaken], or the successor owner of the fee of the 1 Lake ’ supplying such supervision and maintenance 9 * 9.” These references to the lake are to the body of water in its entirety delineated on the described map and not merely to land under water adjacent to the shore front. Thereafter, and on October 28, 1941, Interlaken conveyed the shore front and adjacent land under water to plaintiff without reservation of any rights to