Morgan v. Bolsan Realty Corp.

Sweeney, J. The defendant is the owner of a tract of land subject to easements granted by its predecessor in title in the instrument conveying adjoining land to plaintiff’s predecessor in title. That conveyance granted: "A right of way for the sole and exclusive benefit of the party of the second part, his heirs and assigns and any subsequent owner or owners of those premises now owned by the party of the second part or in which he may have any interest, located at Basin Bay, Lake George, New York, and as an appurtenance to the same, for all purposes of a way on foot and by vehicles, and for electric, telephone, water and gas lines, pipes and poles, over a strip of land in the Town of Bolton, Warren County, New York.” The easement was thereafter described as extending 10 feet on either side of the traveled edge of an existing roadway passing over the lands of the grantor. It was further provided: "The party of the first part does grant to the party of the second part, his heirs and assigns, the right upon said strip of land to lay, maintain, remove, replace and repair poles, pipe lines and roads for the purposes aforesaid, and either above or below the surface of the ground, and to plant, maintain and replace such trees, shrubs, vines, bushes and flowers thereon as he may desire.” Defendant, intending to intercept such right of way with a 50-foot wide roadway on its property, cut down and destroyed a number of plaintiff’s plantings within the right of way. Plaintiff thereupon commenced the present action seeking to restrain defendant from entering upon the right of way for any purpose. The matter was submitted at a Trial Term without a jury on the pleadings and a brief stipulation of facts. The trial court restricted defendant’s use of the right of way to ingress and egress in a manner consistent with plaintiff’s use and permanently enjoined defendant from cutting plaintiff’s plantings within the right of way. It also enjoined defendant from plácing any facilities for transmission of gas, water or telephone communications within such easement [333] area and granted money damages to be determined at a subsequent Special Term. This appeal ensued. Defendant first urges that the judgment entitled plaintiff to the exclusive use of the right of way. This contention is without merit, as the judgment itself provides that defendant may use such easement for any purpose which does not interfere with plaintiff’s use thereof. Next, defendant argues that its intended use of hanging transmission wires, running pipes on the ground and removing a few trees on one side of the right of way for a distance of only 50 feet is reasonable and in no way will inhibit plaintiff’s use. We agree with the trial court that these intended uses are not consistent with the full and undisturbed enjoyment by plaintiff of her easements under the grant. A grantor of an easement may convey or retain that which he desires. In other words he may create an extensive or a .limited easement. It is from the language of the conveyance and the pertinent surrounding circumstances that we ascertain what was granted. Here, the language of the easement is very broad, and we believe intentionally so, for it is significant that we are dealing with a conveyance of adjoining land by a mother to a son. The fact that subsequent owners of the land are unrelated cannot alter the grant of the easement as made.. Defendant further contends that the grant to plaintiff’s predecessor of the right to plant trees, etc., was a mere personal privilege or "easement in gross” which is not assignable. We do not agree. The language of this easement is clear and unambiguous. The right thereunder was a true easement appurtenant, given to the owner of a dominant estate with a relationship to a servient estate. (Cf. Antonopulos v Postal Tel. Cable Co., 261 App Div 564, 568-569, affd 287 NY 712; 17 NY Jur, Easements and Licenses, § 9.) The easement was for the benefit of the dominant estate and passed to plaintiff with the transfer of title to the dominant estate. Lastly, defendant maintains that, absent any express written reservation of title, the trees are the property of the owner of the land to which they are annexed and, hence, it has a right to remove them. While, as a general rule, trees are considered real property, under the circumstances here presented where the owner of the dominant estate is given the specific right to plant, maintain and replace such trees, etc., as he may desire, such plantings as he thereafter places upon the land belong to him to do with as he pleases. The language of [334] the easement manifests an implicit understanding between the grantor and the grantee that they be treated as personal property, notwithstanding their annexation to the real property. (See Sigrol Realty Corp. v Valcich, 12 AD2d 430.) Furthermore, the grant of an easement carries with it every incident necessary to make the grant effectual. (Herman v Roberts, 119 NY 37, 42.) The judgment should be affirmed, with costs.