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.
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