This case is not published in a printed volume and its disposition appears in a table in the reporter.
Bartlett, Pontiff, Stewart & Rhodes, PC, Glens Falls (Mark E. Cerasano of counsel), for Plaintiffs.
Jeffrey P. Mans, Esq., Defendants, pro se.
James P. Dawson, J.
The parties are the owners of adjoining lots on the western shore of Schroon Lake. The Plaintiffs acquired their .34 acre lot, known as Lot 8 of the Edgewater Subdivision, in 1977. The Defendants acquired their .32 acre lot, known as Lot 7 of the Edgewater Subdivision, in 2002. Although it was created in 1967, Lot 7 was never cleared nor developed while the Plaintiffs' lot has been developed since at least 1977 when they acquired it. Lot 6 of the Edgewater Subdivision lies between the public highway, U.S. Route 9, and Lots 7 and 8. The owners of Lot 8 have a right of way to cross Lots 6 and 7 and the owners of Lot 7 have a right of way to cross Lot 6. These rights were created by the subdividers in 1967 when they sold Lots 7 and 8 among others. Lot 8 was created in a deed from the subdividers to Lenchen Marnell, the Plaintiffs' predecessor in title. Lot 7 was created in a deed from the subdividers to Milton Mosall, the Defendants' predecessor in title. The language in the Marnell deed grants "a right-of-way leading over an existing road from Route 9 in a southeasterly direction to the parcel herein conveyed for all purposes." The language in the Mosall deed grants "a right-of-way for all purposes over the existing macadam road leading from Route 9 in a southeasterly direction on other lands owned by the parties of the first part which shall be used in common with the parties of the first part, their heirs and assigns." Lot 6 had apparently not been created, except perhaps on a map, but remained in the ownership of the subdividers when Lots 7 and 8 were created. The only proof is that the road described in the Marnell deed and the macadam road described in the Mosall deed are one and the same road. According to the Plaintiffs' surveyor, Matthew Steves, a 1970 filed subdivision map depicts the location of the road as it was physically laid out until 2002.
In the spring of 2002, the Defendants began clearing Lot 7 and excavating for a foundation. The heavy machinery and trucks damaged the macadam. Some of the excavation was immediately adjacent to the road as laid out. The Plaintiffs commenced this action and sought a preliminary injunction to prevent the Defendants from damaging the road or moving the road. The Defendants answered and sought a preliminary injunction to prevent the Plaintiffs from interfering with the construction. The Defendants moved the road westerly temporarily and then moved it back toward the east, but not all the way back easterly to the point where it was laid out prior to commencement of construction. The move did not involve all of the length of the road that lies on Lot 7 but primarily the southerly portion thereof. Lot 7 is less than 100 feet wide in any event. However, the Defendants' own evidence demonstrates that the relocation created a slight curve in the road as it crossed Lot 7 (Defendants' Ex. M).
The Plaintiffs seek a judgment directing the Defendants to restore the road to its original location and condition.  The Defendants seek a judgment dismissing the complaint. The parties presented their proof over the course of two days before the Court without a jury. Both the Plaintiffs and Defendants submitted a great deal of photographic evidence and both presented expert engineering testimony regarding backing a boat and trailer with a pick-up truck over the road as relocated. The Plaintiffs presented the testimony of a surveyor. The Defendant, Jeffrey Mans, testified from a map prepared by a surveyor hired by him. The Plaintiffs' engineer and expert surveyor used a map prepared by a surveyor hired by the Plaintiffs in 2002 before they hired their expert surveyor. The 1970 subdivision map and other exhibits were also introduced into evidence. The parties were invited to submit written closing statements which both parties have done. The Court has marked those Court's Exhibit 1 (Plaintiff) and Court's Exhibit 2 (Defendant).
The case turns on whether the Defendants had the right to move the location of the right of way and both parties frame their proof in light of Lewis v Young, 92 N.Y.2d 443 ). The Plaintiffs' proof was tendered to prove that the right of way was a "fixed" right of way that cannot be relocated without their consent. The Plaintiffs also tendered proof that the curve in the road created by the relocation impaired or frustrated the use of the right of way. The Defendants tendered proof to the effect that the right of way was not fixed and that the use of it was not impaired nor frustrated. If the Court finds that the right of way was fixed, that ends the inquiry and the road must be restored to the pre-2002 location. If the Court finds that the right of way was not fixed, the Defendants can relocate it so long as the relocation does not impair or frustrate the Plaintiffs' use of the easement. If the use is impaired or frustrated, then the road must be restored to the pre-2002 location. If the use is not impaired or frustrated, the road can remain where it is so long as its condition, pre-2002, is restored.
The language of these grants does not disclose an intention to forever bar the relocation. The language employed in these grants and in the several other grants to lots in the subdivision are no more specific than the grant at issue in Lewis. That grant was a use of the Browns' main driveway, a driveway that had existed in the same location for 37 years. Here the grant is to the use of the road or macadam road. A right of way is fixed if the parties creating it intended that the landowner not be able to relocate it (Lewis, 453). Clearly, if the subdividers had granted "a right of way over Lot 7 for all purposes," that language would indicate that the parties to the Marnell deed did not intend to fix the location. Clearly, if the subdividers had described the right of way across Lot 7 by metes and bounds in the deed description in the Marnell deed, that language would indicate that the parties did intend to fix the location. The fact that the location of the right of way was of longstanding is not evidence of intent to limit relocation of the right of way ( Lewis, 452-453).
The Plaintiffs urge the Court to conclude from the fact that right of way shown on the 1970 filed subdivision map is co-extensive with the pre-2002 location of the road, that the map is the functional equivalent of a metes and bounds description of the right of way. However, the road shown on the subdivision map is not coextensive with the pre-2002 location of the road in that this map does not show the flare in the road as it existed and still exists on Lot 7 and into Lot 8. The road on the subdivision map appears to be of a uniform width while an affidavit by one of the Plaintiffs' engineers, Mr. Klein, submitted on the motion for a preliminary injunction (Defendants' Ex. C) notes that the macadam road varies in width from 10'6" to more than 30'. The subdivision map is dated 1970, three years after the lots were created and there is no proof that the subdividers nor their grantees otherwise had the map or a preliminary map. Neither the Marnell deed nor the Mosall deed refer to the map.
While the Defendants did not submit any proof of what the creating parties intended, preferring instead for the Court to conclude that they intended nothing beyond describing a right of way, the Court will consider what economic motivation the parties may have had at the time.  It would make economic sense for the subdividers to make these tiny lots as valuable as possible. It would make economic sense for the purchaser to have as much latitude to do with the land what purchaser wanted, making the land more attractive to the purchaser. The west end of the lot, being furthest from the lake, would be the least valuable part of the lots and an ideal location for a right of way. The Court cannot conceive of any economic justification that might support a conclusion that the parties intended to fix the location in perpetuity, except perhaps, it might make sense to the subdivider to make Lot 8 more valuable by fixing the location of that way but it also might make sense to conclude that the purchaser of Lot 7 would be more likely to feel his lot was more valuable if he had the right to move the way. That reasoning does not lead to any conclusion with respect to their joint intent.
The Plaintiffs urge the Court to find that the subdividers had a common plan or scheme for subdivision and thus intended, somehow, that the plan not be varied thereafter. However, this argument fails to take into account the intent of the ...