—In an action, inter alia, to declare plaintiffs to be the owners of certain real property, in which defendant counterclaimed to bar plaintiffs from any claim thereto, plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Orange County, dated March 29, 1977, which denied their motion for summary judgment and granted defendant’s cross motion for summary judgment, declaring defendant to be the owner of the subject premises and barring plaintiffs from all claims thereto.
The appeal brings up for review so much of an order of the same court, dated July 18, 1977, as, upon granting plaintiffs’ motion for reargument, adhered to the original determination. Appeal from the order and judgment dismissed as academic. The order and judgment was superseded by the order granting reargument.
Order dated July 18, 1977 modified, on the law, by adding thereto, after the provision that the original determination is adhered to, the following: 619 "except that the provisions in the order and judgment granting defendant judgment are deleted and defendant’s cross motion for summary judgment is denied.” As so modified, said order affirmed insofar as reviewed. Plaintiffs are awarded one bill of $50 costs and disbursements.
This action for a declaratory judgment involves conflicting claims of title by deed to a certain doughnut-shaped property (the "doughnut”) consisting of 2.16 acres which surrounds a well site (the "hole in the doughnut”) in the Bellvale Park subdivision in the Town of Warwick, Orange County. The hole in the doughnut which constitutes the well site is owned by the defendant town, which also claims title to the doughnut by reason of a September 11, 1973 deed from NER Holding Corp., the subdivider.
The metes and bounds description in this deed specifically describes the doughnut, as well as its hole. Plaintiffs’ claim of title is based upon a prior deed, dated March 6, 1969, from one Solomon Reichman. Reichman was NER Holding Corp.’s grantor and, when the corporation subsequently found itself unable to complete development of anything more than the first section of the subdivision of the property, it conveyed the 100-plus acres of land back to Reich-man by deed dated October 3, 1968.
The latter deed contained three exceptions: the 25 lots developed pursuant to the filed subdivision map; certain streets shown on said map which had been dedicated to the town by deed; and so much of the premises within the subdivision as were required for the taking of a water supply and distribution system pursuant to an application approved by the State Water Resources Commission. The deed from Reichman to plaintiffs contained the identical exceptions.
It is plaintiffs’ contention that the land that was excepted from NER’s 1968 deed to Reichman was solely the hole in the doughnut and not the doughnut itself. They assert, therefore, that NER’s deed conveyed the doughnut to Reichman who then conveyed it to plaintiffs in the March 6, 1969 deed. They thus conclude that NER could not have owned the doughnut when it purported to convey it to the town in 1973. Whether NER’s deed to Reichman actually excluded the doughnut is unclear.
The deed excluded "so much” of the Bellvale Park, Section 1, Town of Warwick, map as was required for the taking of a water supply and distribution system as approved by the Water Resources Commission of the Department of Environmental Conservation, including all maps and documents filed with that commission.
The commission’s decision required that NER own all land within 100 feet of any well (thus the hole) and, in addition, that all land within 200 feet of any well (the doughnut) be protected from ground water pollution.
It added: "This may best be done by ownership of the land; otherwise, the use thereof must be restricted, preferably by the enactment by the State Department of Health of suitable rules and regulations for that purpose.” On the Bellvale Park subdivision map the doughnut was outlined with a broken line containing the following legend: "Restricted to subsurface sanitary disposal”.
There is nothing on the map or in the record to indicate the existence of any other filed restriction or covenant limiting the use of the doughnut. In any event, five years after NER’s deed to Reichman, NER’s deed to the town purportedly conveyed all the land included within a circle having a radius of 200 feet from the well.
On cross motions for summary judgment, which included no affidavits from NER or any of its officers, Special Term found that the doughnut had been excluded from the land conveyed to Reichman in NER’s first deed, denied plaintiffs’ motion and granted summary judgment to the town on its cross motion declaring that title was in the town. The cross motion should be denied and the case should proceed to a plenary trial of the issues.
Our dissenting brother interprets the 1968 deed from NER to 620 Reichman as conveying title to the doughnut while excluding from the conveyance the hole where the well was located. In support of this theory the dissent asserts that, with the imposition of a "restriction” upon the use of the doughnut (referring to the legend on the Bellvale Park map), continued ownership of that land by NER was no longer essential for compliance with the Water Resources Commission’s decision.
The dissent then reasons that since it was not necessary for NER to retain ownership of the doughnut to protect the well site against pollution, NER could not have intended to exclude conveyance of title to the doughnut. It concludes, therefore, that the exception in the NER deed to Reichman cannot be construed to exclude title to the doughnut.
But, wholly apart from whether the obscurely worded legend on the Bellvale Park map constitutes a meaningful limitation or restriction on the use of the property comprising the doughnut, it is difficult to square an intention by NER not to exclude the doughnut from its deed to Reichman with NER’s subsequent conveyance of the doughnut to the town. There are, it seems, more questions than answers with respect to the actual property conveyed in the two deeds at issue.
Subdivision 3 of section 240 of the Real Property Law provides that "Every instrument creating, transferring, assigning or surrendering an estate or interest in real property must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent with the rules of law.” However, where the language contained in a conveyance is susceptible of more than one interpretation and leaves the intent of the parties uncertain, parol evidence is admissible to show the particular property to which the ambiguous description applies (Cordua v Guggenheim, 274 NY 51; Harris v Oakley, 130 NY 1).
The exception language in NER’s deed to Reichman is so ambiguous that determination of title solely on the basis of the motion papers can only be based upon speculation. Although the parties have expressed the desire for a disposition on the papers alone, neither of them has established facts upon which a summary disposition could be based. Since the intent questions cannot be resolved without a full exploration at a trial, denial of summary judgment is mandated. O’Connor, Lazer and Gulotta, JJ., concur.
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