State of New York
Supreme Court : County of Monroe

_______________________________

This opinion is uncorrected and is subject to revision in the official Reports

ANDREW V. SIRACUSE, J.

Of the many parties to this lawsuit, two--Rochester Gas & Electric and the Monroe County Water Authority--are effectively disinterested spectators. They have appeared and provided useful information at conferences and through their submissions, but they take no sides in the dispute. A third party, the Town of Irondequoit, has argued that the complaint should be dismissed insofar as it seeks relief from the Town. A separate dispute divides the plaintiff from Samuel and Joyce Saporito, and this is the disagreement that resulted in the lawsuit.

Plaintiff Anthony Cerame commenced this case with an order to show cause seeking a permanent injunction against all parties that would prohibit them from interfering with the gas and water currently supplied to land he owns. That order to show cause contained a temporary restraining order, which remains in effect. At present, the parties are before the court on the plaintiff's request for a preliminary injunction; no party has moved for summary judgment.

The Town's motion to dismiss is difficult to address in this context, because the preliminary injunction does not affect it in any way. The Town's position, in fact, is that none of the relief requested runs to the municipality. The court holds, however, that this issue is best dealt with as a separate matter; it has not been fully briefed by the other parties. This decision, therefore, will deal with the injunction only, and thus the only parties whose positions are relevant are Mr. Cerame and the Saporitos. The legal question here is the existence and survival of an easement implied by existing use for gas and water lines now servicing Mr. Cerame's property. There is no question of an express easement here at any time in the chain of title, and there is similarly no question that the gas and water lines are not referenced in the deed through which the Saporitos took their land. Beyond these facts there is much in dispute.

The Cerame property is landlocked. As often happens in suburban development, houses were built along the street frontage of a large block, leaving a piece of land undeveloped in the center. On this particular piece of land, which is below the grade of the surrounding streets, a log cabin was erected. No party has been able to tell when this occurred; the best estimate is that it was built in the 1920s or 1930s, when this part of the Town of Irondequoit was largely undeveloped. It may have been a hunting cabin, and for a long time has been in a state of disrepair.

It was, however, serviced by water, gas and electricity. All services came from Pinegrove Avenue. There is no dispute about the electrical service. Gas service, which commenced no later than 1964, and water service, which existed in 1959 and probably much earlier, were both routed through a parcel of land adjoining Pinegrove Avenue and which, since 1955 at least, had been in the same ownership as the landlocked parcel. (The Saporitos' counsel claims that the minutes of a 1959 meeting show that the cabin's water supply came from another source, but this was merely the belief of a neighbor; at that meeting the then-owner of the property, a Mr. Wolf, explained that water service was from Pinegrove.)

The interior and Pinegrove parcels remained in single ownership until 1989. At that time the back parcel was conveyed by David Conkey to O.B. Ashman, Inc., with the proviso that a driveway and parking easement be reserved for the landlocked dominant estate, that the driveway area be cleared of trees and the water line relocated to within the driveway easement.

Mr. Conkey had obtained subdivision approval for dividing the two lots in 1987, and a map filed at that time, which is a key document in this case, shows an electric line running parallel to the southerly edge of the driveway easement from the street to the cabin. Water and gas lines are also shown on the map, but their paths are traced only part way. The commencement of each is shown at the street, but the surveyor showed no continuation past the eastern side of the parking easement, which adjoins the landlocked parcel to the west. This is peculiar, because the electric line is shown passing through the parking area, and because it was certainly the case that both water and gas lines continued to the cabin.

Mr. Conkey transferred the back lot to Mr. Cerame in 1992. In March, 2000, the Saporitos purchased the front lot from Ashman. They also bought the lot and house adjoining this parcel, intending to live in the existing house, build a new one on the vacant land, and then move into the new house and rent out or sell the old one. It is uncontested that the Saporitos were on notice of the chain of title and of the facts shown on the 1987 map. Their attorney admits that he was aware at the time of closing of the deed from Conkey to Ashman, which contains the stipulation that the water line be relocated, the recorded driveway easement, the 1987 map and a new instrument survey map which contains no utility lines whatsoever. The Saporitos are charged with that knowledge.

Soon after taking possession the Saporitos began plans for construction. In May, 2000, according to Mr. Saporito, he was told by an RG&E employee of the gas line running to the cabin. He recently deposed that "[t]his was the first time that I had learned that there was a gas line under the front lot. I was very surprised to learn that there was a gas line on the front lot. I did not know where the line went to, or if it serviced anyone, if it was an abandoned line, or anything about it."

In the end, the Saporitos did not finalize their plans and obtain a building permit until this year. Their plans place the basement of the new house directly over the water and gas lines, and service has been shut off to avoid a calamity. It was the actual commencement of construction that led Mr. Cerame, who claims he now intends to renovate the cabin, to commence this action.

What is at issue here is not an easement by necessity or one by prescription, but an implied easement by grant based upon existing use. As the Fourth Department has explained:

where, during the period in which title was unified, an apparently permanent and obvious servitude was imposed on one part of an estate in favor of another, and where such servitude, at the time of severance of title, remains in use and is reasonably necessary for the fair enjoyment of the estate conveyed, a grant of the right to continue such use is implied in the conveyance of the dominant estate. Thus, a grantee claiming an easement implied by existing use must establish: (1) a unity and subsequent severance of title with respect to the relevant parcels; (2) that during the period of unity of title, the owner established a use in which one part of the land was subordinated to another; (3) that such use established by the owner was so continuous, obvious, and manifest that it indicated that it was meant to be permanent; and (4) that such use affects the value of the estate conveyed and that its continuation is necessary to the reasonable beneficial enjoyment of the estate conveyed. To establish an easement by implication from existing use, the proponent-grantee must show only a "reasonable", not an absolute, necessity (Monte v DeMarco, 192 AD2d 1111, 1111-1112, citations omitted).

It is also clear that the passage of utility lines through the servient estate is "a substantial and valuable right and not a mere convenience" (loc. cit., citing Paine v Chandler, 134 NY 385, 390). The plaintiff has stressed the fact that because of the elevation differential between the cabin and the rest of the area, routing new lines elsewhere would be prohibitively expensive. (It may bear repeating that there is no proof that water had ever been supplied to the cabin in any other way.) The court therefore holds that the 1989 severance of the two parcels operated to create an implied easement on the basis of existing use in favor of the landlocked parcel, for utility access to Pinegrove Avenue through the front parcel. The next question is whether that easement was extinguished by the conveyance from Ashman to the Saporitos.

The Saporitos were bona fide purchasers, and they had no actual notice of this unrecorded easement. The question for the court is whether they knew, when they bought the land, "of facts sufficient to put [them] on inquiry as to the existence of rights of others in conflict" with their ownership (Covey v Niagara, Lockport and Ontario Power Co., 286 App Div 341, 345, citing Cassia Corp. v North Hills Holding Corp, 278 App Div 960). In other words, would a reasonable purchaser, knowing what the Saporitos did in March, 2000, have thought it necessary to investigate the placement of the utility lines?

The electrical service was shown in full on the 1987 map, it is not affected by the proposed construction, and no issue arises because of it. The water and gas lines, as noted above, were shown only in part on that map. But does this absolve the Saporitos of the duty to inquire?

The court holds that it does not. The 1987 map, while potentially misleading, gave sufficient notice to a purchaser to require them to investigate further. Any inspection of the area or search of the title would have revealed that the cabin was the only structure on either of the parcels. The electrical service was known. The title search would have shown, as well, that Ashman had undertaken to relocate the water line. The inconsistency between this obligation and the placement of water line on the map should have led any responsible buyer to ask if the line had indeed been relocated. Furthermore, the stipulation implies that the cabin was receiving water at the time Ashman bought it and that this need was expected to continue.

It should have been clear in March, 2000, that the partial lines on the 1987 map could only have been intended to service the cabin on the rear parcel. At the very least, this possibility is so strongly indicated by the history and condition of the property that any reasonable buyer would have conducted further research.

It appears from the latest submissions that the Saporitos might not have paid attention to the 1987 map at all. They have argued that the gas line shown therein might have been a partial or abandoned line, but in his affidavit accompanying the December 5 submission, as noted above, Mr. Saporito claims that he had no idea that any gas line, even an abandoned one, passed through the property until May, 2000, when he was told about the line by RG&E.

This neglect would certainly explain the Saporitos' failure to discover the existing utility service running through their land. It is no defense, however; they are put on notice of whatever was in the record documents, including the map, and are thus also charged with whatever duties those facts would give rise to (see, Bird v Salt Hill Corp., 282 App Div 1047). The easement by existing use for both the utility lines was not therefore extinguished by the transfer to the Saporitos.

The plaintiff has asked for a preliminary injunction. As is well known, the requirements for this relief are the lack of other effective remedies, irreparable harm if the injunction is not granted, a likelihood of success on the merits, and a balancing of equities in the proponent's favor. The last two of these requirements have been met. The others are less certain. Money damages might be sufficient to compensate Mr. Cerame if he were forced to route his utility supply elsewhere, and a delay in his projected renovation would not be an irreparable harm. Nonetheless, there is no guarantee that another property owner would be willing to accommodate Mr. Cerame's requirements. The clear best solution to this controversy is for the gas and water lines to be relocated within the driveway easement. (The parties may wish to consider the Saporitos' posting a bond to cover the cost of this work, so that the lines could be moved and their construction proceed while the case is litigated.) Failing an agreement to do that, the plaintiff has made out a case for an injunction until the determination of his suit or further order of this court. Counsel for Mr. Cerame should prepare the order.

DATED: Rochester, New York

December 10, 2003

Andrew V. Siracuse, J.S.C.

This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without the approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Design © 1997 Michael Steinberg. No copyright subsists in the decision texts, which are government documents.

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