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Home > Underwriting > Title News > Twenty-One Volume Five

SERIES: Twenty-One VOLUME: Five DATED: May, 2006

~ EASEMENT FOR "BOATING, BATHING AND SWIMMING" DOES NOT PERMIT USER TO BUILD A SUNDECK ON OWNER'S DOCK"

In a recent decision, Clark v. Filler (Appellate Division, Third Department, decided February 23, 2006), the appellate court overturned a lower court determination that an easement for "boating, bathing and swimming" did not include a right for the easement users to construct a sundeck on the owner's dock. The decision of the appellate court denying the expanded use of the property owner's dock is as follows:

"This appeal concerns the interpretation of a 'Declaration of Covenants, Restrictions and Easements' (hereinafter the Declaration) contained in the parties' deeds to adjoining properties on the shore of Lake George in Washington County. The Declaration, among other things, grants an easement to plaintiffs Robert Strasser and Janis Strasser (hereinafter collectively referred to as plaintiffs) to access the lake over defendant's property and use defendant's covered dock 'for purposes of boating, bathing and swimming.' The Declaration also provides that plaintiffs would bear any expense of repairing or replacing the dock and '[a]ny replacement of said dock will be of like quality to the existing dock.' Supreme Court read these terms to permit plaintiffs to replace the existing corrugated metal hip roof over defendant's dock with a flat wooden sundeck with a railing around it and a stairway to permit plaintiffs and their guests to access and gather on the sundeck.

'The extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest and intent of the parties' . . . Here, rather than grant a general easement as to defendant's dock that would include any reasonable lawful use . . . the Declaration limits the permitted uses of the dock and specifies the nature of any replacement . . . Supreme Court found that 'boating, bathing and swimming' must include sunbathing because 'bathing' is listed separately from 'swimming' and personal cleansing is the only other type of bathing of which the court was aware. Supreme Court also found no violation of the requirement that any replacement be of 'like quality' since the proposed flat sundeck has some of the same dimensions, although not the same design, profile or purpose as the sloping roof it would replace.

Even if we were to agree that sunbathing is a reasonable accessory use of the dock itself, we cannot agree that the right to make such use implies a right to alter defendant's existing structure to permit access to the roof for that purpose. While the Declaration certainly obligates plaintiffs to pay the expenses necessary to maintain, repair or replace the dock, it confers no affirmative right to make such significant changes to both its function and appearance. Since the proposed sundeck would be located only 15 feet from defendant's front porch, and the sights and sounds of persons using it would greatly increase the burden upon the servient estate, we construe the Declaration's requirement that any replacement be of 'like quality' to mean replacement by a similar type of roof as well as similar size and quality. Plaintiffs are not faced with a situation where the easement would be without purpose if no sundeck could be constructed . . . Based on this record and the language of the Declaration, we discern no factual issues and conclude that plaintiffs' claim of a right to alter defendant's dock and expand its uses is refuted as a matter of law. . .

ORDERED that the orders are modified, on the law, without costs, by declaring that plaintiffs' easement does not authorize replacement of the roof of defendant's dock with a sundeck, and, as so modified, affirmed."

~ BOARD OF DIRECTORS ELECTION OF OFFICERS ~

At its April 25th meeting Monroe Title's Board of Directors elected the following associates as officers of Monroe Title:

Scott D. Deverell, as Vice President - Finance and Chief Financial Officer of the Corporation
William C. Howe, Manager of Monroe's new Mayville Office in Chautauqua County, as an Assistant Vice President of the Corporation
Audrey H. Mangiola, in Monroe's Rochester Office, as an Assistant Secretary of the Corporation
Christine F. Russell, as Monroe Title's Treasurer

Congratulations to Chris, Audrey, Bill and Scott on their well deserved election to these officerships.

~ MONROE OPENS MAYVILLE OFFICE IN CHAUTAUQUA COUNTY ~

Monroe Title has opened its 24th office in New York State in Mayville, Chautauqua County. William Howe has been named Manager of Monroe's newest office. Bill will be assisted by Kara Lyon and Sue Post in providing complete on-site Monroe Title abstract and title insurance products and services throughout Chautauqua County. Monroe's Mayville office is located in the Chautauqua Municipal Building, 2 Academy Street, Room 123, Suite B, Mayville, New York (telephone number 716-269-7484).


  Copyright 2006 by Monroe Title Insurance Corporation