Customer Login   |  Quick Order   |  Contact Us  |  Site Map     
Home > Underwriting > Title News > Eighteen Volume Two

SERIES: Eighteen VOLUME: Two DATED: February, 2003


In a recently decided case, Smith v. Buckley (Appellate Division, Supreme Court, Third Department, decided January 16, 2003) the Appellate Court upheld the right to use a footbridge right-of-way pursuant to an easement declared in the last will and testament of the original owner of the property both benefitted and burdened by the easement. The Court's decision in the Smith case is as follows:

"This matter concerns the use of a private road or right-of-way in the Town of Mamakating, Sullivan County, known as Ferguson Lane, which begins at First Street in the Village of Wurtsboro, Sullivan County, and allegedly extends in an easterly direction past a footbridge over the Basha Kill creek. The origin of Ferguson Lane dates back to Jacob Masten, property owner, who made provisions for its future use in his last will and testament dated August 21, 1849. The record indicates that Ferguson Lane crosses over parcels belonging to defendants. The chains of title for their properties are derived from Jacob Masten's estate. Plaintiff is the owner of an adjoining lot of land located east of the Basha Kill creek. The specific dispute herein involves plaintiff's use of the Basha Kill creek footbridge to gain access to Ferguson Lane from his property. Defendants claim that Ferguson Lane ends at the creek and does not extend eastward over the footbridge.

Plaintiff, relying, inter alia, on a copy of Masten's will and surveying data, commenced this action seeking a judgment declaring that he has access to Ferguson Lane for ingress and egress. Additionally, plaintiff sought to have defendants enjoined from interfering with his right of passage. Following joinder of issue, plaintiff moved for summary judgment on his second cause of action which claimed a right of passage over Ferguson Lane on the ground that, through Masten's will, plaintiff 'obtained a right-of-way and easement and/or a restrictive covenant' that exists in his favor over Ferguson Lane. Supreme Court, inter alia, granted that motion, prompting this appeal.

Initially, defendants contend that Supreme Court erred in relying upon a copy of the certified copy of Masten's will because it could not be proven that it was a true and accurate reproduction of the original will admitted to probate by the Sullivan County Surrogate. The original will and certified copy were both apparently destroyed in a fire at the Sullivan County Courthouse in 1909. Notably, where, as here, it is the official duty of a court clerk to have and keep a document and 'the paper is not found in the particular place provided for the deposit of it, the presumption is that it is lost or destroyed'... In the event of such loss or destruction, resort to secondary evidence of a document's contents is allowed... Here, the evidence in support of plaintiff's motion sufficiently established the destruction of Masten's will and defendants have failed to raise a question of fact as to the accuracy of the copy.

Next, we find the Supreme Court correctly interpreted Masten's will as creating an appurtenant easement requiring defendants to keep Ferguson Lane open for plaintiff's use. An easement can be created by a will... Here, the relevant language of the will reads:

'All of which parcels of land are so given and bequeathed upon condition that the lane upon the north side of said farm and now used for a passage to and from the lands lying east of the [Basha Kill creek] is to be kept open for the use of all those owning lands along the same and to those who may hereafter lawfully possess any part of the lands now owned by me, conditioned that all those persons who may use said lane or passage put up any bars or close all gates that may be placed across the same to prevent cattle or other animals from passing into the gate' (emphasis added).

We do not agree with defendants' contention that this language is ambiguous or merely created a personal license to the devisees as opposed to an easement running with the land. A plain reading reflects the testator's intent to maintain the lane for passage for his personal devisees, as well as current and future property owners..."


In another action concerning enforcement of a right-of-way easement, Beachside Bungalow v. Oceanview Assoc. (Appellate Division, Second Department, decided January 13, 2003) the Appellate Court struck down an easement for beach access which benefitted property not in the chain of title of the burdened premises. The Court's decision in the Beachside Bungalow case restates the long accepted rule in New York that a deed with a reservation benefitting parties outside the chain of title of the grantor is ineffective as follows:

"The plaintiff is a not-for-profit organization dedicated to preserving a bungalow community created in the 1920's situated on the Atlantic Ocean in the Far Rockaway section of Queens. The plaintiff's members are bungalow owners and lessees currently residing in the community. In 1994 the defendants purchased property in the bungalow community and obtained title through deeds to five adjacent lots closest to the ocean. The defendants subsequently built an apartment complex on a portion of their property, which the plaintiff claimed blocked a 40-foot wide easement for beach access granted to the residents of the bungalow community in their respective deeds. The plaintiff commenced this action on behalf of the bungalow owners, inter alia, to enjoin the defendants from obstructing the easement. The defendants interposed an answer, inter alia, asserting two counterclaims seeking a judgment declaring the defendants' property free and clear of any easement and to permanently enjoin the plaintiff's members from trespassing on their property. The Supreme Court granted the defendants' motion for summary judgment dismissing the complaint, finding that the plaintiff failed to raise a triable issue of fact that the bungalow owners' chain of title granted them an easement burdening the defendants' property. We agree.

The defendants made a prima facie showing of their entitlement to summary judgment by establishing that the easement identified in the bungalow owners' respective deeds does not burden the defendants' property... The plaintiff's submissions in opposition to the motion failed to raise a triable issue of fact as to the existence of an easement by grant... Contrary to the plaintiff's contention, the existence of later deeds in the defendants' chain of title which conveyed the property subject to a mid-block easement of access to the beach did not create an issue of fact. Even assuming that the language in those deeds was not the result of a scrivener's error and was not subsequently corrected by duly-recorded correction deeds, it is nevertheless clear that such an attempt to create an easement under these circumstances would be invalid. New York adheres to the majority rule that a grantor cannot create an easement benefitting land not owned by the grantor ... For an easement by grant to be effective, the dominant and servient properties must have a common grantor... Here, in addition to the fact that the grantors named in those deeds did not own the land which the easement was intended to benefit, '[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called 'stranger to the deed', does not create a valid interest in favor of that third party'... Consequently, any easement reserved to the bungalow owners in the defendants' chain of title was ineffective to create an express easement in the bungalow owners' favor..."

  Copyright 2006 by Monroe Title Insurance Corporation