The opinion of the court was delivered by: CHARLES H. TENNEY
Plaintiff brought suit in 1992 seeking a declaratory judgment pursuant to Rule 57 of the Federal Rules of Civil Procedure that the easement is in full force and effect and barring the defendant from interfering in any way with plaintiff's use of the easement. By stipulation, the other named plaintiff, the Permanent Mission of the Islamic Republic of Iran to the United Nations, withdrew its claims with prejudice. Joint Pre-trial Order dated May 7, 1993 ("JPTO"), p. 2, n.1. Because of the diversity of citizenship of the parties and the value of the property, jurisdiction is proper under 28 U.S.C. § 1332(a)(2) (1976). In June, 1993, this court held a three day bench trial. For the reasons set out below, the court now determines that the easement claimed by the Ambassador has been extinguished and that it has not been revived.
Pursuant to Federal Rule of Civil Procedure 52, the Court finds the following facts:
1. The easement was created in or about 1874 when the sole owner of the real property comprising both the Residence and the Coop sold the property in separate lots to separate purchasers. These purchasers were the predecessors-in-interest to the parties here. The easement was an appurtenance of the property that would become the Residence and a burden on the real property that would become owned by the Coop. JPTO p. 4, Stipulated Fact ("SF") 8.
2. The easement has been referred to in all deeds after 1874 forming the respective chains of title to the real property at issue in this lawsuit. JPTO p. 4, SF 9.
3. Louis Gordon Hamersly conveyed the real property located at 1030 Fifth Avenue to the Coop by two deeds dated July 10, 1924 ("Hamersly Deeds"). Each Hamersly deed contains the following condition upon the conveyance: "SUBJECT however, to such right of way as may now exist over the rear 10' feet of the premises hereby conveyed in favor of the owners of premises adjoining on the north and together with the right, title and interest of the seller in and to the said easement or right of way." JPTO pp. 3-4, SF 6, 7; Plaintiff's Exhibits ("Pl. Exh.") 2, 3.
4. Mignonette Corporation conveyed the real property now located at 1033 Fifth Avenue to "Mehdi Vekil, as Ambassador of Iran to the United Nations, on behalf of the Government of Iran and respective successors" by a deed dated June 1, 1966 ("Mignonette deed"). The deed conveys the Residence "together with the right, title, and interest, if any, of the party of the first part in and to the right of way in and over a strip ten (10') feet wide being the easterly portions or rears of certain lots adjoining and lying southward of said premises to pass and repass on foot or with animals, vehicles, loads or otherwise to and fro between the said premises and the northerly line of 84th Street." JPTO pp. 2-3, SF 2, 3; Pl. Exh. 1.
5. As early as 1944, but certainly by 1946, the Coop had erected a double-hinged iron gate at the southern entrance to the driveway. JPTO p. 4, SF 10, Trial Transcript ("Tr.") 8, 37-38. Generally, one side of the gate is open 9:00 a.m. to 5:00 p.m. on Monday through Friday, and between 7:00 a.m. and 3:00 p.m. on Saturday. At all other times the gate is locked. The Coop's personnel maintain possession of the key to the gate. JTPO p. 4, SF 11.
6. The Coop has a service entrance which is used frequently and is accessible through the driveway. JPTO p. 5, SF 13. The Residence also has an entrance at the rear which is accessible through the driveway. JPTO p. 5, SF 14.
7. The driveway is roughly ten feet wide. An iron bar runs across the top of the driveway gate; this bar is approximately eight feet high. Tr. 76, 77.
8. Building superintendent John Rukaj, along with other employees of the Coop, regularly park their cars on the driveway and have done so for many years. Tr. 12, 13, 46, 47, 73, 74, 84, 88. The Coop has had sole responsibility for maintaining and improving the driveway. Tr. 108, 169.
9. Sometime in the late Summer or early Autumn of 1990, the Ambassador's employees sought permission to use the driveway at the rear of 1030 Fifth Avenue to facilitate the transport of materials needed for a renovation of the Residence. Deposition of Defendant's witness Diane Peck, Defendant's Exhibit ("Def. Exh.") H at 9, Tr. 90. Permission to use the driveway was granted by the property manager of the Coop at that time, Diane Peck, subject to the condition that the Iranians's use of the driveway not interfere with the daily operations of the Coop. Def. Exh. H at 10-11, Tr. 92.
10. The Coop's superintendent, John Rukaj, allowed the Iranians onto the driveway on three occasions within a two week period during the renovation. On these occasions, Mr. Rukaj unlocked the gate so that both sides stood open, allowing the free movement of construction materials in and out of the driveway.
11. When Mr. Rukaj felt that the Iranians were interfering with the Coop's daily operations, he informed them that they could no longer use the driveway. They complied without protest. On several subsequent occasions, the Iranians requested permission to use the driveway for their renovation efforts and were denied. On none of these occasions did they protest the denials. Tr. 97-99.
12. Early in 1991 the Ambassador sought to use the alleyway behind the Residence to park his car. Def. Exh. H at 16. This required use of the Coop's driveway, which is the only access point to the alleyway from the street. Ms. Peck, the property manager, was contacted by Mr. Chasra B. Hajari, an employee of the Ambassador, who requested permission to use the driveway. Id. The Ambassador offered to pay the parking fees of any Coop employees who would be inconvenienced by such an arrangement. Id. at 17.
13. Ms. Peck referred the matter to the Board of Directors of the Coop, who denied the Ambassador's request in a letter ...