81 A.D.2d 434 | N.Y. App. Div. | 1981
OPINION OF THE COURT
In 1953 the plaintiff’s predecessor in title, Frances L. Furman, was the owner of two city lots on Bay Parkway in Brooklyn. On November 5, 1953 she conveyed a portion of the southerly lot to the defendants Jack and Mary Morrison, retaining for herself the ownership of a 7%-foot-wide strip of land along the northerly side and a 23-foot-wide strip along the easterly side of the southerly lot.
On or about June 11, 1958 Furman conveyed the land of the southerly lot, which she had previously retained, to the Morrisons and they, in turn, granted an easement to Furman, her heirs and assigns, upon the land so conveyed. The easement was appurtenant to the northerly lot, and was to run with the land. By the easement the Morrisons granted to Furman: “Full free and exclusive right and liberty for her, her family, tenants, servants, visitors and licensees, to use the above described land known as Tax Lot 78, Block 6518 for all and any purposes and to have full use and enjoyment thereof without let or hindrance of any kind or manner from the Morrisons, their heirs and assigns, but that Furman may not erect any fence or structure or use the land in any manner which will interfere with light and air of the Morrisons, provided, however, that if Furman shall sell or convey the land and building now known as 4640 Bay Parkway, so that those premises shall not be owned by Furman, her heirs or members of her immediate family, then this easement granted herein to Furman shall cease to be exclusive, and both the grantees of Furman, their heirs and assigns, and the Morrisons, their heirs and assigns, shall have the right jointly to use
By deed dated July 19, 1966 Mary Morrison became the sole owner of the southerly lot, burdened by the easement in question.
On December 1, 1975 plaintiff became the owner of the northerly dominant lot through mesne conveyances from Furman. It is claimed that on the day before the plaintiff took possession in 1975, the Morrisons constructed a chain link fence between the two lots.
Plaintiff commenced this action by properly effectuating service of the summons and complaint upon the defendants in January 1980, and on March 3, 1980 he served a verified amended complaint. The first cause of action asserted in the amended complaint alleges, in relevant part, (1) that the fence in question was erected by the defendants not upon their own lands but rather upon the lands of the plaintiff and (2) that the effect of the erection of the fence was to deprive plaintiff of the use of his lawful easement. Plaintiff claimed that he had demanded that the defendants comply with the easement, but that they had declined to do so. Plaintiff’s second cause of action alleged that as a result of defendants’ wrongful acts he would incur counsel fees, costs and disbursements in the expected sum of $5,000. Accordingly, plaintiff demanded that defendants be barred from all claims to an estate or interest in his property, that they be permanently enjoined from interfering with his easement and that he be granted a money judgment against defendants on the second cause of action in the sum of $5,000.
On or about June 18, 1980 defendants moved to dismiss the first cause of action upon the grounds of the Statute of Limitations, failure to state a cause of action and a defense founded upon documentary evidence, and to dismiss the second cause for failure to state a cause of action.
Upon oral argument, plaintiff’s counsel conceded that the fence was located upon the property of Mary Morrison and accordingly so much of the first cause of action as appears to allege a trespass was properly dismissed. Similarly, the second cause of action to recover attorney’s fees, costs and disbursements is without legal merit. The law is well settled that in the absence of a statute expressly authorizing him to do so, or unless the parties have otherwise agreed or stipulated, a civil litigant may neither sue his adversary to recover fees paid to his attorney for legal services, nor, unless the court has directed taxation of such a payment in extraordinary circumstances, tax them as a disbursement (City of Buffalo v Clement Co., 28 NY2d 241, 262-263; 8 Weinstein-Korn-Miller, NY Civ Prac, par 8301.04). A cause of action does not lie to recover costs and disbursements. If plaintiff is the prevailing party in this action he will be entitled to tax them at the foot of the judgment (see CPLR 8101 and 8301). Accordingly, the second cause of action was properly dismissed.
What remains of plaintiff’s complaint are those allegations of the first cause of action which seek a permanent injunction upon the ground that defendants have interfered with plaintiff’s easement of use and enjoyment by erecting a fence along the boundary line between the two parcels. The questions which now must be addressed are (1) whether those remaining allegations state a cause of action, (2) whether the claim is time barred by the Statute of Limitations and (3) whether the survey constitutes documentary evidence establishing a defense to that claim.
An easement proper is an incorporeal right which is appurtenant to the ownership of the dominant estate and
Defendants contended at Special Term that plaintiff’s cause of action is time barred by the Statute of Limitations contained in CPLR 214 (subd 4), which provides that an action to recover damages for an injury to property must be commenced within three years. The undisputed facts here show that the fence was erected in 1975 and this action was not commenced until 1980. In the recent
Next we note that this case is not governed by RPAPL 2001. That section governs actions to recover damages for, or to enjoin the breach of, negative easements which relate to structures which may be erected upon the defendant’s premises. It provides, in substance, that unless suit is commenced before the expiration of two years from the completion of the structure concerned it shall be conclusively presumed that the plaintiff’s right of action for relief by way of damages or injunction has been released. In so doing it does not set forth a Statute of Limitations (see Recommendation of Law Revision Commission Relating to Presumption of Release of Right to Enforce Certain Covenants Restricting Use of Land or Right of Action for Damages for Breach of Restriction, 1963 Report of NY Law Rev Comm, pp 345, 346, NY Legis Doc, 1963, No. 65 [K]) and must be interposed either by asserting the defense of release in a motion under CPLR 3211 (subd [a], par 5) or in the defendant’s answer (see CPLR 3211, subd [e]).
An affirmative easement is one which grants the owner
The dominant estate here has been sold and is no longer owned by Furman, her heirs or members of her immediate family. For that reason the operative language of the easement is that: “both the grantees of Furman, their heirs and assigns, and the Morrisons, their heirs and assigns, shall have the right jointly to use and enjoy said land covered by this easement, but that neither may erect any fence or structure or use said land in any manner which will interfere with the air and light of either party”. This language contains features of both affirmative and negative easements. To the extent that it permits the plaintiff to use and enjoy the land of the servient tenement it is affirmative and it gives him no right to prohibit general use and enjoyment by the Morrisons. To the extent that it prohibits the Morrisons from constructing any fence or structure which restricts plaintiff’s light and air it is negative because plaintiff, as an adjoining landowner has no natural right to light or air, and, in the absence of such a negative easement, he could not complain that either had been cut off by the erection of structures on the defendants’ land (1 NY Jur 2d, Adjoining Landowners, § 57).
Plaintiff does not seek to enjoin the defendants from
Even if RPAPL 2001 were applicable it would merely prevent plaintiff from seeking damages for, or obtaining an injunction requiring the removal of, the fence. It would not prevent him from seeking an injunction to prevent the defendants from interfering with his use and enjoyment of their property by gaining access thereto over or around the fence. Nor would it prevent the accrual of a new cause of action in the event that the present fence was removed and a new fence erected, or in the event of an alteration or enlargement thereof creating a different or more extensive violation (1963 Report of NY Law Rev Comm, pp 346-347). Similarly, if plaintiff obtained an injunction prohibiting defendants from barring his entry over or around the fence, its mere existence would then constitute an interference and inconvenience but not a complete obstruction to plaintiff’s use or enjoyment, and would therefore not ripen into the extinguishment of his affirmative easement by adverse possession (see 2 NY Jur 2d, Adverse Possession, §§ 49, 50, 119). In this respect plaintiff’s ease
The final point is whether the survey map of the boundary between the two pieces of property and of the easement area constitutes documentary evidence warranting dismissal of plaintiff’s complaint. Special Term considered defendants’ motion to dismiss under CPLR 3211 as one for summary judgment under CPLR 3212 and granted it upon this ground. It is our view that far from establishing a defense, the survey indicates that by building a fence along the entire boundary between plaintiff’s property and theirs, defendants have interfered with his rights under the affirmative easement. We have not searched the record and granted summary judgment to plaintiff because, contrary to the view of Special Term, it is our opinion that the parties should have been notified of the court’s intention to treat the motion as one for summary judgment (see CPLR 3211, subd [c]), and because the defendants may possibly be able to show either that they were justified in excluding plaintiff because of misuse of the easement (see 25 Am Jur 2d, Easements & Licenses, § 107) or his refusal upon demand to pay the percentage of real property taxes levied upon the servient estate as required in the instrument by which the easement was created. In this latter regard, if the exclusion preceded the demand, the plaintiff’s refusal to pay a percentage of the taxes would be amply justified.
The order appealed from should be modified to the extent of striking the fifth and sixth paragraphs of the first cause of action asserted in the verified amended complaint and dismissing the second cause of action in its entirety. As so modified, the order should be affirmed, with $50 costs and disbursements to plaintiff.
Order of the Supreme Court, Kings County, dated September 18, 1980, modified, on the law, by deleting the provisions dismissing the complaint in its entirety and substituting provisions dismissing (1) the fifth and sixth paragraphs of the first cause of action asserted in the verified amended complaint and (2) the second cause of action asserted in the verified amended complaint. As so modified, order affirmed insofar as appealed from, with $50 costs and disbursements to plaintiff.