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. [*2]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.^[FN1] 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 NY2d 443 [1998]). 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 [*3]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.^[FN2] 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 purchaser or purchasers who might each have some other idea in mind.

Perhaps the Plaintiffs' best argument is based on their proof that iron pipes marked the right of way. A map received in evidence and referred to as the Nestor Map (Plaintiffs' Ex. 23) depicts an iron pipe at the west bounds of the pre-2002 right of way as it crosses from Lot 6 into Lot 7. This same survey shows a railroad spike in the macadam on the line between Lots 7 and 8. The Edgewater Subdivision Map (Plaintiffs' Ex. 19) likewise shows iron pipes at those same points. The Steves map (Plaintiffs' Ex. 21) shows the pipe on the line between Lots 6 and 7 but not the pipe on the line between Lots 7 and 8. The Brannon Map (Plaintiffs' Ex. 22) is to the same effect as the Steves map. That is some evidence from which a person could infer that the pipe on the line between Lots 6 and [*4]7 and between Lots 7 and 8 were to mark the limits of the right of way. While that may be so, the surveyor that created the subdivision map referred to these pipes as points on line and did not employ the same protocol of marking the edge of the right of way on other lots. For example, on the line between Lots 13 and 14, the surveyor set a pin in about the center of the paved right of way (Plaintiffs' Ex. 19, sheet 2). There is no pipe or pin marking the right of way as it crosses the line between Lots 9 and 10. There is a pipe on the line between Lots 10 and 11 although the right of way apparently does not continue from Lot 10 into Lot 11. The Plaintiffs' proof is rendered ambiguous by these observations. That proof is also rendered ambiguous by the absence of any pipe on the westerly side of the right of way.

The Court finds that the language of the grant does not itself reveal an intent to preclude the landowner's right to relocate the right of way. The Court further finds that "the circumstances surrounding the conveyance, including the conduct of the parties both prior and subsequent to the grant" does not (Lewis v Young, 98 NY2d 443, 454 [1998]) disclose "an intent to deny the landowner's right to relocate the [right of way]" (id.). While Lewis, supra, did not specifically discuss burden of proof, it is clear from a reading of that case that it is the easement owner's obligation to prove that the easement cannot be relocated by the landowner and the Court decides that the Plaintiffs have failed to meet that burden by a fair preponderance of the credible evidence.

The foregoing findings and decision compel a further consideration as to whether the Plaintiffs' use of the right of way as relocated "impairs enjoyment of the easement holder's rights" (see Grafton v Moir, 130 NY at 473). Here, the Plaintiffs contend that the small size of their lot necessitates backing across the Route 9 shoulder and right of way (90 feet ±), across the southwest corner of Lot 6 including a "dogleg" turn of about 90 degrees, across Lot 7 (95 feet) and onto their lot. The Plaintiff, Shahen Chekijian, testified that prior to the relocation he could back his boat in with relative ease because the road across Lot 7 was straight. Mr. Chekijian also testified that during the 2003 and 2004 boating season he did not use the boat because backing the boat across Lot 7 was too taxing or too stressful, or words to like effect. This, he says is so notwithstanding that the dogleg turn on Lot 6 would seem to present far more challenge than backing over the relocated road. Rather, the Plaintiff, Shahen Chekijian, counters that it was because of the dogleg turn that the straight line of the former road was so important. There is no proof of any sort that the pre-2002 road was altered at its juncture with the common line of Lots 6 and 7 except to make it wider by a few feet on the westerly side. The eastern limits were not moved (Plaintiffs' Exs. 22 & 23) so the driver of the towing vehicle, or pushing vehicle, is not limited from that side. The Plaintiffs presented expert testimony on this backing issue as did the Defendants. The Plaintiffs' expert, not surprisingly, supported the Plaintiffs' case and the Defendants' expert, not surprisingly, supported the Defendants' case. The Court has considered the experts' opinions, but finds that neither opinion is of such quality as to compel any particular conclusion. Both experts used modeling protocols developed by ASHTOE. But these models were designed to be used to model the towing of a boat trailer. In this case, the models were used to simulate the backing of a boat trailer. While both experts made a gallant effort to be scientific in explaining how they faithfully adapted their models to suit these facts, the Court finds that their evidence was unpersuasive. As anyone who has ever backed a two-wheeled trailer or tandem-axle boat trailer knows, each endeavor is sui-generis. The ability to accomplish the end comes more from a sense of timing than from computing the angles. The Plaintiffs have some 20 feet of straight road on Lot 6 to get set to enter Lot 7, the same entry onto [*5]Lot 7 that always did and still does exist. The relocated road is virtually straight across Lot 7. The backing of a boat trailer in a straight line is hardly easier than backing through a turn the Court has observed. The road across Lot 7 is wider than the pre-2002 road. The new curve is immaterial unless one accepts Plaintiff Shahen Chekijian's testimony that the approach from Lot 6 to Lot 7 and the relocated road has changed and the Court does not accept that testimony as reflective of the real state of affairs.

The Court finds that the Plaintiffs' access to Lot 7 and the utility of the easement across Lot 7 have not been impaired by the Defendants' relocation of the road. The Court decides that the relocation of the road 5± feet to the west of its pre-2002 location is consistent with the principles articulated in Lewis v Young, supra, and with the principles articulated in Green v Blum, 13 AD3d 1077 [2004].

The complain is dismissed on the merits and the Defendants should submit a judgment accordingly, and it is So Ordered.

Decided:August 18, 2005

_____________________________________________

James P. Dawson, JSC

Enter: