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Business Litigation - Appellate Practice - Real Estate Easements

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 NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT

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, White Plains, N.Y. (William H. Mulligan and Vincent W. Crowe of counsel), for appellants.

Cuddy & Feder, White Plains, N.Y. (Kathleen Donelli of counsel), for respondent.

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, Westchester County (Coppola, J.), entered June 9, 1992, which, after a nonjury trial, is in favor of the plaintiffs enforcing their easement over the defendants' property.

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.