Defendant owns Clifford Island situated in Long Island Sound in the city of New Rochelle. On this property consisting of ten acres he leases plots as sites for bungalows and he has more than seventy-five tenants. The island is connected by a footbridge with a dock owned by him on the mainland. The only access to the dock and the island from any highway is by a right of way extending in a southerly direction from the Boston Post Road over a private lane and thence over land owned by plaintiff. It is thirty-five feet wide and is described in various deeds as "a right of way over a certain private road or lane known as LeFevre's Lane and a continuation thereof extending from the Boston Road or Main Street to the shore of Long Island Sound * * * with the right to the free and unobstructed use of the said private road or lane from the said Boston Road or Main Street to the shore of Long Island Sound, aforesaid, for passage of horses and vehicles of every kind and for all other lawful purposes in common with the owners of the said lands late of Julia A.T. Stephenson and John Stephenson adjoining said road or lane." The complaint alleges and the evidence supports the allegations that defendant's tenants have parked automobiles on the right of way and that defendant has caused a wooden walk to be erected and has dug a trench and laid water pipes therein. For relief it demands that defendant be restrained from using the way for any purpose except for ingress and egress and from parking automobiles thereon and that he be required to remove the walk and the pipes. The answer alleges and the evidence supports the allegations that for some years past a small pipe had existed along the right of way supplying defendant's island with water, that it had become rusted and broken and that defendant had dug a trench and endeavored to lay a new water line. It also alleges that the land is *Page 89 rough and rocky and that defendant has endeavored to repair and grade it but that plaintiff has interfered with his attempt. The Appellate Division reversing certain findings and conclusions and making new ones, has decreed that plaintiff, as owner of the fee of the land lying south of LeFevre's Lane, is entitled to erect a gate to remain unlocked across the northern boundary of its property, provided it does not interfere with the free and unobstructed use of defendant's right of way, that defendant be enjoined from digging or excavating on any part of the right of way and he and his tenants be enjoined from parking automobiles thereon. Nevertheless, after reciting the fact that plaintiff has stipulated that defendant may dig a trench for the purpose of laying a two-inch water pipe, the judgment decrees that plaintiff's permission to defendant shall be construed as a license only, that it shall carry no prescriptive rights and that such license may be revoked by a court of equity at any time and that the court shall determine the time and manner in which such license shall be deemed revoked. Even this revocable license, as so decreed, is limited to plaintiff's land and under the judgment does not operate within the boundaries of LeFevre's Lane.
The grant to defendant and his predecessors is unusually broad. Certainly it confers far more extensive rights than those of mere ingress and egress. It differs from the easement in Grafton v.Moir (
In other respects, the judgment against defendant is too sweeping. Particularly is this true in respect to that part which restrains him, as matter of right, from digging or excavating. It is correspondingly too narrow in according him a privilege only by way of a revocable license to lay water pipes. Even if defendant's easement were to be construed as no broader than a right of passage, he would be entitled to break up the soil, level irregularities, fill up depressions, blast rocks and not only remove impediments but supply deficiencies in order to construct a suitable road. (Herman v. Roberts,
The judgment should be modified in accordance with this opinion and as so modified affirmed, with costs to the appellant.
CARDOZO, Ch. J., CRANE, LEHMAN and KELLOGG, JJ., concur; POUND and HUBBS, JJ., not sitting.
Judgment accordingly. *Page 92