786 N.Y.S.2d 839 | N.Y. App. Div. | 2004
Appeal from an order of the Supreme Court (Kavanagh, J.), entered May 17, 2004 in Ulster County, which, inter alia, granted defendants’ cross motion for summary judgment dismissing the complaint.
Defendants have an easement to cross plaintiffs’ property in order to reach their property. Flaintiffs sought permission to move the private road used by defendants and, when defendants refused, plaintiffs commenced this action seeking a declaratory judgment permitting them to change the route of the road across their property. Both sides moved for summary judgment. Supreme Court granted defendants’ cross motion and dismissed the complaint. Flaintiffs appeal.
“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” (Lewis v Young, 92 NY2d 443, 449 [1998]; see Bakeman v Talbot, 31 NY 366, 371 [1865]; Marek v Woodcock, 277 AD2d 864, 865 [2000], lv denied 96 NY2d 792 [2001]). Hence, “[i]n the absence of a demonstrated intent to
Here, the easement was granted in 1993 and, with respect to the relevant portion across the property purchased by plaintiffs in 2001, it provided that the easement shall “follow the existing roadway through [plaintiffs’ lot].” At the same time that the easement was recorded, a declaration of maintenance regarding the private road was recorded and, indeed, such declaration of maintenance is referenced in the easement. The declaration of maintenance reveals that the private road passed over other property before reaching plaintiffs’ parcel. Significantly, the description of a section of the private road not located on plaintiffs’ property was set forth in metes and bounds. However, such a specific description is not included in the easement burdening plaintiffs’ property, which contains only a general reference to an existing road when crossing that property (cfi id. at 453 [“Notably, the parties themselves in the same deed described two additional easements by explicit reference to metes and bounds. Had they intended the right of way to be forever fixed in its location, presumably they would have delineated it in similar fashion.”]).
Defendants ostensibly resisted moving the road, in part, because they believed the existing road afforded a better scenic view. Access to a view, however, was not an expressed purpose for which this easement was created (see id. at 449-450; Cohan v Fleuroma, Inc., 42 AD2d 741, 741 [1973]; cf. Witter v Taggart, 78 NY2d 234, 237-238 [1991]). Moreover, the fact that the easement granted defendants a limited right for a short period of time to move a portion of the road
Notably, the limited right permitted moving a section of the road to essentially the same area where plaintiffs seek to move that section of the road.