SERIES: Sixteen VOLUME: One DATED: January, 2001

~ SANFORD J. LIEBSCHUTZ ~

Sanford J. "Sandy" Liebschutz, a longtime Monroe Director, passed away December 22, 2000 after a long illness and hospitalization. Sandy was a member of Monroe's Board of Directors since 1970 and served as Chair of the Board's Investment Committee during most of his tenure as a Monroe Director. He was a partner at the Rochester law firm of Chamberlain, D'Amanda, Oppenheimer & Greenfield and served as an advisor and Board member for many Rochester area charities. At the time of his death he was Chairman of the Board of Directors of the Rochester Area Community Foundation. His able stewardship of Monroe's Investment Committee, his active participation as a Monroe Board member and his friendship will be sorely missed by his colleagues on Monroe's Board as well as Monroe's Rochester office employees.

~ COMMON DRIVEWAY USE UPHELD ~

A recently decided Appellate Division case, Nicola Niceforo et al., d/b/a Papa's Family Diner v. Elizabeth Haeussler, d/b/a/ Elizabeth's Unisex Salon (Appellate Division, Third Department, decided October 26, 2000) examined the requirements of an easement appurtenant. The plaintiffs and defendants in this action were owners of adjoining parcels of land located at 209 Delaware Street and 207 Delaware Street, respectively, in the Village of Walton, Delaware County. Both parcels were originally owned by Albert and Lucy Smith and when the Smiths conveyed 209 Delaware Street to Sutliff in 1920, that conveyance included "the right to use for the purpose of a driveway, in common with the party owning [defendant's property], the strip of land... immediately easterly of the property hereinbefore conveyed, which strip is 10 feet wide, it being understood that this right to use as a drive extends only far enough toward the rear of the lot to accommodate [Sutliff] in getting past her house". One year later, when the Smiths conveyed the adjoining parcel at 207 Delaware Street to one of the defendant's predecessors in title, the deed contained language "excepting and reserving from said parcel the rights and privileges hereto conveyed to... Sutliff".

In 1934, Sutliff conveyed 209 Delaware Street to Benson, including "all her right, title and interest in the use of a driveway lying easterly of the property conveyed by this deed, the use of which drive was deeded to [Sutliff by the Smiths in 1920]". At some point subsequent thereto, the residence located on the parcel was demolished and a gas station was erected. Ultimately the Papa's Family Diner group acquired the parcel in 1992 by a deed that referenced and included the "10 foot wide driveway easement" and utilized the driveway for access to their parking lot located to the rear of their property.

The defendant, Elizabeth's Unisex Salon, then acquired the adjoining parcel at 207 Delaware where she resides and operates her hair salon and a dispute eventually arose concerning the use of the driveway. The plaintiff, Papa's Family Diner commenced this action seeking a declaration that they had a right of ingress and egress over the driveway to their parking lot. The lower court granted Papa's Diner partial summary judgment and declared that they did indeed have an easement, in common with the defendant, of which they could make reasonable use for ingress to and egress from their property. The defendant, Elizabeth's Unisex Salon appealed that decision to the Appellate Division which held as follows:

"Defendant's primary argument on appeal is that the right-of-way in question was an easement in gross and, hence, was extinguished upon, ... Sutliff's disposition of the property. We cannot agree. 'An easement in gross is a mere personal, nonassignable, noninheritable privilege or license'..., while an easement appurtenant provides for a transferable interest in land... Specifically, an easement appurtenant is created when such easement is '(1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate'... Once created, an easement appurtenant may be extinguished only by abandonment, conveyance condemnation or adverse possession... The nature and extent of the easement in question is to be determined 'by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties'...

Applying these principles to the matter before us, it is readily apparent that the subject right-of-way is an easement appurtenant. The 1920 Smith to Sutliff conveyance created a written and subscribed easement for the benefit of the dominant estate (now plaintiff's land) burdening the servient estate (now defendant's land)... and, as noted previously, reference to such easement appears in the parties' respective chains of title. Under such circumstances, Supreme Court appropriately concluded that plaintiff's in deed have an easement appurtenant, in common with defendant, of which they may make reasonable use for ingress to and egress from their property.

To the extent that defendant asserts that the purpose of the subject easement was extinguished by Sutliff's death or, more particularly, the demolition the residence formerly located on plaintiff's parcel, we cannot agree. Defendant's argument on this point apparently centers upon that portion of the Smith to Sutliff conveyance that states, 'it being understood that this right to use a drive extends only far enough toward the rear of the lot to accommodate [Sutliff] in getting past her house'. Once the house was demolished, defendant's argument continues, the purpose of the easement was completed and the easement itself was extinguished. As a starting point, the foregoing language, in our view, was intended to describe the length of the easement in feet, not years. Moreover, as noted previously, an easement appurtenant, once created, may be extinguished only by abandonment, conveyance, condemnation or adverse possession, none of which is alleged to have occurred here. Defendant's remaining contentions, including her assertion that such easement may not be used for commercial purposes and that plaintiff's use thereof is unreasonable and has overburdened the servient estate, were not before Supreme Court and, hence, will not be addressed by this Court on appeal."

One can wonder what the Court would have held had the issues of demolition of the former residence of Sutliff and the greatly expanded commercial use of the right-of-way had been preserved for appeal. Nevertheless, the case does provide a clear statement of principles commonly applied by the Courts to determine the existence of easements appurtenant.