204 A.D.2d 705, *; 613 N.Y.S.2d 33, **;
1994 N.Y. App. Div. LEXIS 5759, ***
Route 22 Associates, respondent, v. Stephen R. Cipes, et al.,
appellants.
92-08925
SUPREME COURT OF
204 A.D.2d 705; 613 N.Y.S.2d 33; 1994 N.Y. App. Div. LEXIS 5759
May 6, 1994, Argued
May 31, 1994, Decided
CASE SUMMARY
PROCEDURAL POSTURE: In an action pursuant to N.Y. Real Prop. Acts. Law
§ 15 for a judgment declaring that plaintiffs had an easement over defendants'
property, defendants sought review of a decision of the Supreme Court,
Westchester County (New York), which, after a nonjury trial, was in favor of
plaintiffs enforcing their easement over defendants' property.
OVERVIEW: The trial court found that plaintiffs could enforce an
easement over defendants' property. On appeal, the court affirmed. The court
held that the intention of the grantor was to be determined in light of all the
circumstances; however, one of the most important indications of the grantor's
intent was the language of the original deeds. The court further held that,
contrary to defendants' contentions, the language contained in the deeds and
other evidence presented at the nonjury trial established that the original
grant of the easement was to be permanent in nature. Further, the court held
that there was no indication that plaintiffs had at any time abandoned the
easement. The court held that defendants failed to prove both an intention to
abandon and some overt act or failure to act in support of such an intention.
Moreover, the court held that mere nonuse of the easement did not establish that
plaintiffs intended to permanently relinquish all rights it.
OUTCOME: The court affirmed the decision of the trial court, which
found that plaintiffs could enforce their easement over defendants'
property.
CORE TERMS: easement, deed, language contained, grantor, nonjury trial
LexisNexis(R) Headnotes Hide
Headnotes
Real & Personal Property Law > Estates, Rights & Titles >
Easements & Rights of Way
HN1 The rules applied to the construction of an easement created by an
express grant are the same as those applicable to the construction of language
contained in a deed. Although extrinsic factors may be considered in
determining the intent of the parties where the language in the instrument
creating the easement is vague and unclear, a contrary intent cannot be implied
if the extent of an easement is clearly indicated by the language in a grant.
The intention of the grantor is to be determined in light of all the
circumstances; however, one of the most important indications of the grantor's
intent is the language of the original deeds.
More Like This Headnote
Real & Personal Property Law > Estates, Rights & Titles >
Easements & Rights of Way
HN2 Mere nonuse will not cause the extinguishment of an easement. More Like This Headnote
COUNSEL: [***1] Bleakley, Platt & Schmidt,
Cuddy & Feder,
JUDGES: JOHN COPERTINO, J.P., FRED T. SANTUCCI, WILLIAM D. FRIEDMANN,
GLORIA GOLDSTEIN, JJ.
OPINION: [**33] [*705]
DECISION & ORDER
In an action pursuant to RPAPL article 15, inter alia, for a judgment
declaring that the plaintiffs have an easement over the defendants' property,
the defendants appeal from a judgment of the Supreme Court,
ORDERED that the judgment is affirmed, with costs.
[*706] HN1"The rules applied to the
construction of an easement created by an express grant are the same as those
applicable to the construction of language contained in a deed * * * Although
extrinsic factors may be considered in determining the intent of the parties
where the language in the instrument creating the easement is [***2] vague and unclear[,] a contrary intent cannot
be implied if the extent of an easement is clearly indicated by the language in
a grant" (see, 2 Warrens Weed, New York Real Property, Easements, § 3.02
[4th ed]). The intention of the grantor is to be determined in light of all the
circumstances; however, one of the most important indications of the grantor's
intent is the language of the original deeds (see, Fischer v Liebman, 137 AD2d
485, 524 N.Y.S.2d 720). Here, contrary to the defendants' contentions, the
language contained in the deeds and the other evidence presented at the nonjury
trial established that the original grant of the easement was to be permanent
in nature.
Further, there is no indication that the plaintiffs had at any time
abandoned the easement. The defendants failed to prove both an intention to
abandon and some overt act or failure to act in support of such an intention.
HN2Mere nonuse will not cause the extinguishment of the easement (see,
Carnemella v Sadowy, 147 AD2d 874, 538 N.Y.S.2d 96), and here, the evidence did
not establish that the plaintiffs intended to permanently relinquish all rights
to the easement [**34] (see, Consolidated Rail Corp. v MASP
[***3] Equip. Corp., 67 NY2d 35, 499
N.Y.S.2d 647, 490 N.E.2d 514).
COPERTINO, J.P., SANTUCCI, FRIEDMANN and GOLDSTEIN, JJ., concur.