concerning the dangers of proximity to the wellhead require such discovery. He does not, however, indicate to the Court that he at any time actively sought such discovery nor does he submit any other evidence which disputes plaintiff's allegations that the present situation is both inconvenient and unsafe.
The general rule is that one who owns land subject to an easement has a right to use that land in any way not inconsistent with the easement and that the extent of the easement claimed must be determined by the true construction of the grant which is created, aided by any surrounding circumstances which have a legitimate tendency to show the intentions of the parties. While
it is difficult, if not impossible, to lay down a clear and definite line of use which shall enable the parties always to determine what may be considered a proper and reasonable use, as distinguished from an unreasonable and improper one, and such questions must . . . usually [be] left to [the trier of fact.]" Herman v. Roberts, 119 N.Y. 37, 23 N.E. 442 (1890),
the terms of an easement are to be construed against the grantor in determining the extent of the easement. Phillips v. Jacobsen, 117 A.D.2d 785, 786, 499 N.Y.S.2d 428 (2d Dept. 1986)
In this case, plaintiff purchased with its easement a right to convenient access to the wellhead; it has submitted undisputed affidavit testimony that the placement of the trailers and the septic system renders access to the wellhead, for repairs and other purposes, inconvenient. Defendant does not dispute that testimony, nor would the discovery he seeks concerning the safety of the placement of the trailers address this issue.
Finally, defendant can not argue that plaintiff has, by custom, limited the easement to a 50 foot radius of the wellhead; it is axiomatic that an easement obtained by grant can not be extinguished by mere nonuse. Snell v. Levitt, 110 N.Y. 595, 18 N.E. 370 (1888). The owner of an easement of convenient access may find that "convenience" changes with time and with changing circumstances; his former practice does not preclude a changed exercise of the easement. See Filby v. Brooks, 105 A.D.2d 826, 829, 481 N.Y.S.2d 865 (2d Dept. 1984), aff'd., 66 N.Y.2d 640, 495 N.Y.S.2d 362, 485 N.E.2d 1027 (1985) (Where easement of ingress or egress has been created by grant, and no occasion for its full use has arisen, the owner of servient tenement may obstruct easement until such time as owner of easement demands to exercise easement fully.)
WHEREFORE, the order of this Court, filed April 3, 1992, dismissing this action is hereby vacated; the action is reopened; and plaintiff's motion for summary judgment is granted. Defendant Bishop is enjoined to remove, at his own expense, and on or before October 9, 1992, the trailers, septic systems, and sand filter systems to a distance at least 200 feet from the wellhead and is further enjoined from locating any other structure or other encroachment, above or below ground level, within 200 feet from such wellhead.
ALL OF THE ABOVE IS SO ORDERED.
MICHAEL A. TELESCA
United States District Judge
DATED: Rochester, New York
September 9, 1992