~ RELOCATION OF RIGHT-OF-WAY EASEMENT BY LANDOWNER WITHOUT CONSENT OF EASEMENT HOLDER ~
The New York State Court of Appeals has addressed the issue whether a landowner can, without consent, relocate an easement holder's right-of-way over the premises burdened by the easement in the recently decided case, Lewis vs. Young (92 NY 2nd 443, decided October 27, 1998).
In Lewis vs. Young, the plaintiff, Roger Lewis and defendant, Neda Young own adjoining parcels of land in Southampton. Both parcels were formerly owned by Herb and Jeanette Brown who in 1956 sub-divided their land into three parcels: a four acre tract that the Brown's retained for themselves (and later conveyed to Young) and two smaller properties, one of which they sold in 1956 to Lewis' predecessor in title, his aunt Marygaele Jaffe. The Jaffe parcel did not have direct access to a public roadway, therefore, in her 1956 deed Jaffe was granted rights-of-way over the Brown's property to South Ferry Road. Two of the easements, a thirty foot right-of-way and a fifteen foot right-of-way were specifically described with exact distances and monumentation. The third easement provided for "the perpetual use, in common with others, of the [Brown's] main driveway, running in a generally southwesterly direction between South Ferry Road and the [Brown's] residence premises."
When Young acquired the Brown's property she demolished a small cottage and replaced it with a new residence, an inground pool and a tennis court. Prior to commencement of construction, Young met with her neighbors at that time, Katz and Jaffe, to discuss her plans which required that Young relocate the driveway in question by placing it closer to the boundary line separating the Young, Katz and Jaffe parcels in order to make room for a new tennis court on the Young property.
When the plaintiff, Lewis, acquired title to his aunt's property in the midst of this renovation effort, he informed Young that he would agree to the relocation of the driveway only if Young would complete certain renovations, including (1) refinishing the driveway, (2) installing entrance pillars and (3) landscaping the driveway with evergreens. Later, Lewis, in a second letter, stated that unless the relocated driveway was improved as he requested, he would "proceed in putting the driveway back where it was originally" despite the destruction of the newly built tennis court which stood in the way. Lewis subsequently obtained, in Supreme Court, a summary judgment which held that he held an easement over Young's property which Young had no right to move since the location of the subject easement remained fixed for at least 37 years and that the easement could not be relocated without the plaintiff Lewis' consent. The Appellate Division affirmed the lower court decision holding that the use of the driveway for 37 years without objections by the servient (Young) tenement fixed its location and, as such, the course could not be changed without the consent of the easement holders (Katz and Jaffe / Lewis).
The Court of Appeals reviewed prior New York case law concerning easement rights and the unilateral modification of rights-of-way by a servient estate and concluded that:
"As in the easement alteration cases - a balancing test is also appropriate as to the relocation of an undefined right-of-way. In the absence of a demonstrated intent to provide otherwise, a landowner, consonant with the beneficial use and development of its property, can move that right-of-way so long as the landowner bears the expense of the relocation, and so long as the change does not frustrate the parties intent or object in creating the right-of-way, does not increase the burden on the easement holder and does not significantly lessen the utility of the right-of-way... Given that a landowner is not, as a matter of law, precluded from relocating such an easement of ingress and egress in the first instance, it follows that the easement holders continued use of the access-without more-does not itself alter that right... Mere use of a particular path in accordance with an explicit right to do so is neither hostile nor adverse. Thus continued usage of that same path does not in and of itself fix an otherwise undefined location so as to enlarge the interest of the easement holder or reduce the interest of the landowner.
... here the easement conveyed to the Jaffes a right to 'the perpetual use in common with others of [Mr. Brown's] main driveway, running in a generally southwesterly direction between South Ferry Road and [Mr. Brown's] residence premises... The deed, however, does not reflect an intent to deny Mr. Brown the right ever to relocate the 'main driveway' to his house in order to accommodate the grantee's right of ingress and egress to their adjoining premises. Indeed, the indefinite description of the right-of-way suggests the opposite - namely, that the parties intended to allow for relocation by the landowner. Notably, the parties themselves in the same deed described two additional easements by explicit references to metes and bounds. Had they intended the right-of-way to be forever fixed in its location, presumably they would have delineated it in a similar fashion... The provision manifests an intention to grant a right of passage over the driveway - wherever located - so long as it meets the general directional sweep of the existing driveway... When - as here - the language of a grant does not itself reveal an intent to preclude the landowner's right to relocate the right-of-way, consideration must also be given to circumstances surrounding the conveyance, including the conduct of the parties both prior and subsequent to the grant... Here, however, nothing in the conduct of the parties or other surrounding circumstances indicates an intent to deny the landowner's right to relocate the driveway. Thus, the only remaining fact question is whether the location impairs or diminishes the plaintiff's right of ingress and egress.
Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, and the case remitted to Supreme Court for further proceedings in accordance with this opinion.