Armstrong v. County of Onondaga

Judgment reversed, without costs, and matter remitted to Supreme Court, Onondaga County, for further proceedings in accordance with the following memorandum: The principal issue on this appeal is whether the parties to a 1964 deed, a 1965 agreement and a 1971 deed, all relating to the grant of an easement to the county over a private road, intended that the county was to maintain the road in the'event it abandons the easement. A county has broad power to acquire real property or any interest therein for its lawful purposes (Statute of Local Governments, § 10, subd 2). More specifically, a county district may acquire real estate and easements by gift, lease, purchase or condemnation (County Law, § 263). In this purchase, the obligation of the county to maintain the easement at its sole expense was a benefit to the lands burdened by the easement and was, of course, a burden to the county. Since the purpose of the easement was to provide access from the public highway to county land, the easement was a burden upon the lands it traversed and was a benefit to the county land. Thus established is the measure of consideration given by the county for the easement. Significantly, neither the deeds nor the agreement proscribe the county from abandoning the easement. It was foreseeable here, as ordinarily it is in every case of an easement for access, that at some future date the easement would be of no value to the dominant tenement, which in this case is the county land. In such event, it is well settled that the owner of the dominant tenement may abandon the easement (Gerbig v Zum 907 paño, 7 NY2d 327, 330-331). We conclude, therefore, that the parties intended that the consideration for the easement was the county’s obligation to maintain the access road only for such time as the county retained the easement. Having thus assessed the intent of the parties to these three instruments, it is of no consequence that plaintiffs may have been third-party beneficiaries of the 1964 deed or the 1965 agreement. Moreover, the 1971 indenture between plaintiffs and the county reaffirmed, but did not expand, the county’s existing obligation. There is another reason for declining to construe the deeds and the agreement as creating an obligation to maintain the access road beyond the abandonment of the easement by the county. To do so would have the effect of creating an affirmative covenant running with the land, with no temporal limitation upon its duration. The successor in interest to the county’s land would be burdened with the obligation to maintain the private road. The alienability of the county’s land should not be so restricted (see Eagle Enterprises v Gross, 39 NY2d 505, 510). On this point, the charge of the dissenter that we “have interjected an issue not raised, briefed or argued” deserves but brief comment. The issue of perpetuity has been in the case from the beginning. The documents under review purport to bind the county’s successors and assigns. The trial court’s dismissal of the complaint was premised upon a holding that the burden of maintenance should not be allowed unfairly to outlive the benefit of the use and the subject matter of the case relied upon by the trial court (see Levy v Schnurmacher Constr. Corp., 255 NY 83) was an affirmative covenant running with the land. Despite ample opportunity to have done so, the county has never abandoned its easement. Although the county argues that the abandonment issue in its brief on appeal, it is neither alleged in the pleadings nor was it demonstrated at trial that the county has abandoned. The evidence bearing on abandonment shows only that the county has not used the easement since December, 1971 and that it has failed to maintain the private road since 1972. Little or no weight can be given to the county’s construction of an alternate access road, since that construction was in progress when the county reaffirmed the easement in the November, 1971 deed. The proof, therefore, was insufficient to establish an abandonment (see Gerbig v Zumpano, 7 NY2d 327, supra). If the county now chooses to abandon this easement, it will be easy enough to accomplish by formal act of the appropriate authority. Accordingly, the county remains obligated to maintain the access road and it should be held liable in damages for its breach until such time as it unequivocally abandons the easement. The matter should be remitted for trial on the issue of damages only. All concur, except Callahan, J., who dissents in part, in the following memorandum.