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Home > Underwriting > Title News > Sixteen Volume Three

SERIES: Sixteen VOLUME: Three DATED: March, 2001

~ LANDOWNER BURDENED BY EXPRESS EASEMENT BARRED FROM ALTERATION MAKING ACCESS MORE DIFFICULT ~

Recently decided Appellate Division case has addressed the obligation of a landowner not to impair the easement holder's reasonably necessary and convenient right of passage. In the action Marek v. Woodcock and Rakvica et al (Appellate Division 3rd Department, decided November 28, 2000) the court determined that the easement holder's access could not be made more difficult in the following decision:

"In 1986, plaintiffs acquired title by warranty deed to a certain parcel of property in the Town of Mayfield, Fulton County. Defendant Jack Woodcock owns various parcels which are in the general vicinity or adjoining the real property owned by plaintiffs, while defendants Rudolph S. Rakvica and Janet A. Rakvica are owners of property adjoining plaintiffs. This action was commenced in 1989 for a determination of claims to such properties, including trespass and ejectment. The cause of action against the Rakvicas was settled by oral stipulation placed on the record on October 18, 1995. Ultimately, on May 14, 1997, an order granting the conveyance of an easement for the purpose of ingress and egress over a specified portion of plaintiffs' property was entered.

The Rakvicas thereafter moved to hold plaintiffs in contempt of court. They alleged that plaintiffs violated the terms of the order by interfering with their right-of-way by their placement of vehicles across the access, the deposit of debris thereupon and the alteration of the surface from a grassy strip to muddy subsoil. County Court found a willful violation and ordered plaintiffs to restore the area. This appeal ensued.

It is well settled that an easement is a 'right of passage, and not any right in a physical passageway itself, that is granted to the easement holder...' Moreover, '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 easement holder's right of passage is not impaired...' Hence, the right becomes that which 'is reasonable necessary and convenient for the purpose for which it was created...' It is reasoned that by affording a landowner this unilateral but limited right to alter a right-of-way, the landowner's right to use the property and the easement holder's right of ingress and egress is balanced...'

Despite the finding by County Court of malice, plaintiffs' intent holds no importance unless such acts interfered with the Rakvicas' legal right of access... Therefore, in reviewing the alterations made and whether such alterations 'permit the holder[s] of the easement to continue the reasonable use and enjoyment of the way...' with the convenience to which they have become accustomed... the requisite analysis must take into account 'all the surrounding circumstances...'

The record reflects that plaintiffs admit to having removed the top layer of the subject right-of-way for the purpose of making it more useable for heavy equipment. However, with no proof presented to support such intent, the record more accurately reflects, through the affidavit of Rudolph Rakvica and the photographs depicting the change, that such alteration was made solely for the purpose of making access more difficult... As it substantially interfered with the Rakvicas' reasonable use and enjoyment of the right-of-way in light of the convenience to which they had become accustomed, we find no basis upon which we would disturb the determination rendered.

The record reflects that plaintiffs admit to having removed the top layer of the subject right-of-way for the purpose of making it more useable for heavy equipment. However, with no proof presented to support such intent, the record more accurately reflects, through the affidavit of Rudolph Rakvica and the photographs depicting the change, that such alteration was made solely for the purpose of making access more difficult... As it substantially interfered with the Rakvicas' reasonable use and enjoyment

~ ADJACENT LANDOWNERS EASEMENT RIGHTS IN ABUTTING PRIVATE STREET UPHELD ~

In a recently decided Appellate Division action the Court affirmed a lower court order which refused to dismiss an action brought by landowners to enforce their easement rights in a private street abutting their property. In Bogan vs. Town of Mt. Pleasant (Appellate 2nd Department, decided December 12, 2000) the Appellate Court upheld the rights of abutting lot owners in adjacent private streets shown on a filed subdivision map as follows:

"The Supreme Court properly determined that the plaintiffs had an implied easement by grant and that the conduct of the defendant Gary Bettino in blocking their use of the easement constituted a trespass... It is well established that when property is described in a conveyance with reference to a subdivision map showing streets abutting the lot conveyed, easements in the private streets appurtenant to the lot generally pass with the grant... Moreover, the grantees of lots abutting a street on a filed map are entitled to have the land so demarcated remain as a street forever, absent their abandonment, conveyance, condemnation, or adverse possession... The Supreme Court properly refused to dismiss the plaintiffs' causes of action...

The defendants' remaining contentions are without merit."


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