Daily Development for
Tuesday, July 13, 1999 by:
Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
EASEMENTS; SCOPE;
RELOCATION: Easement granting right of way across driveway gave dominant
tenement general right of egress and ingress, not right to particular location
of easement, so that owner of servient tenement could relocate the easement at
owner's expense.
Lewis v. Young, 705 N.E.
2d 649 (N.Y. 1999).
Browns, some time before,
had sold off two parcels from their property, but retained ownership of a four
acre tract. The smaller parcels did not have direct access to the public
roadway, and therefore the deeds granted rights of way over the Brown property
to South Ferry Road.
Jaffes purchased one of
the smaller parcels and their deed provided an easement for the perpetual use
of the main driveway on the Brown property to South Ferry Road. The Youngs
succeeded to the title to the Brown parcel. The Young deed referenced the main
driveway easement. The driveway remained in the same location for 37 years,
before the Youngs decided to add a tennis court, which would necessitate the relocation
of the driveway.
Allegedly, Mrs. Jaffe gave
verbal consent to the relocation of the easement. However, Mrs. Jaffe died and
her nephew, plaintiff Lewis, received the deed to the property in the middle of
the Youngs' renovations. Lewis's counsel sent a letter to the Youngs stating
that his client would agree to the relocation only if the Youngs would perform certain
renovations on the main driveway, which the Youngs agreed to do once
construction was completed.
Once the tennis court was
completed, Lewis's attorney sent another letter giving Mrs. Young 10 days to
complete the driveway renovations. In 1995, Lewis filed suit seeking a
declaration of the parties' rights and seeking to remove the tennis court.
The Supreme Court granted
plaintiff's motion for partial summary judgment, finding as a matter of law
that because the easement had remained in the same location for 37 years, it
could not be relocated without the plaintiff's consent. The Appellate Division
affirmed for essentially the same reason.
On appeal, held: Reversed.
The New York Court of Appeals, viewing this as an issue of first impression,
concluded that where the intention of an easement is to afford ingress and
egress, it is the right of passage not a right to the physical passageway
itself that is granted. Additionally, in the absence of any indication to the
contrary, a landowner burdened by an express easement of ingress and egress may
narrow it, cover it over, gate it or fence it off, so long as the right of
passage is not impaired.
The Court noted that the easement
relocation questions that had previously reached the Appeals Court concerned
different factual situations. The first line of cases involved easements in the
nature of a right to build a structure, so that a specific, fixed location was
important. Another line of cases were those where the easement holder, not the landowner,
sought to relocate the easement. The reasons for denying an easement holder the
right to relocate an easement, namely, discouraging improvement of the servient
estate, decreasing its value, and inciting litigation, do not apply in in a
situation where the servient owner seeks relocation. The Court concluded that a
servient owner can move the right of way so long as the servient owner pays for
the relocation, and the relocation does not frustrate the parties' intent in
creating the right of way.
The Court applied these
principles to the facts and concluded that the parties' intent did not preclude
the relocation of the right of way, and remanded for determination of whether
the relocation impairs the plaintiff's right of ingress and egress.
Comment 1: Although the
editor has always been the first to argue that easements ought to be regarded
as real estate interests with specially protected status more than just
contract expectations, the editor agrees completely with the decision here. Easements
do involve a balancing of the interests of two parties, and if the parties
themselves do not explicitly identify where the balance ought to be, then
courts ought to find the balance that most serves the full utilization of both
parties' parcels. That is just what the court did here.
If the dominant owner
wants to avoid such actions by subsequent courts, the dominant owner ought to
make clear in the original easement grant where the rights lie. And a court
should honor that grant. Comment 2: Note that in many cases such as those
presented here, where there is no express route for the easement, any
relocation will be barred because the dominant owner has so configured its own
property that the proposed relocated easement present practical impediments to
the use of the dominant parcel. An interesting issue arises where the servient tenant
offers not only to pay for the costs of relocation of the easement but also for
the cost of reconfiguring the dominant parcel so as to render the relocated
easement convenient. Should the dominant tenant be forced to accept such
reconfiguration of its own property? The editor's answer would be
"no." Again, if the servient tenant wants to have such extraordinary
rights to alter the use of the dominant tenement to accomodate changes in the
easement, let the servient bargain for such language in the easement grant
itself.
Items in the Daily
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