This is an action by the plaintiffs for declaratory and injunctive relief centered upon their claim for a judicial interpretation and determination of their legally cognizable and enforceable right of "reasonable use incidental to the purpose of the easement"^[FN1] for ingress and egress over and along a right of way (sometimes referred to in abbreviated form as a "ROW") traversing approximately 1500 feet beginning at a point of access on the north line of Springville-Boston Road up to a point of entry at the east line of the property as described in a deed granted to the plaintiffs dated October 9, 1975 and depicted in a survey that was incorporated by reference in the deed (this being for all reference purposes throughout this Decision, the "easement ROW"). The easement ROW weaves its way over several large parcels of individually owned property, including defendant's parcel which he purchased in 2020. As necessary and relevant to the disposition of this matter, it is undisputed that all of the aforesaid parcels were owned at one time and stem from a source of common title vested in one Stanley Duchnick.^[FN2]

I. PROCEDURAL HISTORY AND STATUS OF THE ACTION

Plaintiffs' summons and complaint seeking multiple forms of declaratory and injunctive relief relative to the easement ROW referenced above (to wit, express, implied by necessity, estoppel, prescriptive) with a copy of plaintiffs' deed marked as Exhibit A were filed on October 26, 2022. Doc. Nos. 1 and 2.

At the time of commencement, the plaintiffs also filed a Proposed Order to Show Cause with a supporting affidavit from plaintiff Margaret Chapman, along with accompanying exhibits and memorandum of law seeking a preliminary injunction. Doc. Nos. 3-10. The OTSC was signed on October 27, 2022, and filed on October 28, 2022. Doc. No. 11.

Defendant filed opposing papers to the OTSC on November 2, 2022, including defendant's affidavit, counsel's affirmation, and accompanying exhibits with an opposing memorandum of law. Doc. Nos. 12-25.

Defendant's answer with counterclaims seeking affirmative declaratory relief was filed on November 15, 2022. Doc. No. 26.

Plaintiffs' reply to the counterclaims was filed on November 21, 2022. Doc. No. 32.

A bench trial was conducted before IAS Judge Craig D. Hannah on September 28, 2023, on the remaining "narrowed issues" which counsel for the parties stipulated on the record at the beginning of the trial to be pruned down to the parties' agreement and acknowledgement "to the existence of an easement here—an expressed easement, the issue before the Court is the scope of that easement and what rights that easement convey." Tr. of 9/28/2024, Pg. 7, l. 14-18. The matter was further summed up by counsels' stipulation as follows: "You'll see where we're talking about when we introduce the evidence, but we're really talking about to the extent that there is an easement, we understand there is one and it's really what rights come along with that easement and where is that easement located." (italics added) Tr. of 9/28/2024, Pg. 7, l. 23 through Pg. 8, l. 4. This is the sole issue to be examined and decided by the Court.

Contemporaneously, all other easement claims raised in the pleadings or throughout the prior proceedings in the action concerning rights alleged by the plaintiffs over a section of the defendant's driveway that was previously installed by the defendant's predecessor in title and was not part of the easement ROW, were withdrawn or removed from the action, with counsel acknowledging that the parties "also agreed that there is no longer any claim to the use of my (defendant's) driveway via an easement by prescription, necessity, estoppel or expressed easement my client's (defendant's) driveway is out of the picture." Tr. of 9/28/2024, Pg. 7, l. 19-23.

The trial was straightforward with the testimony of plaintiff Margaret Chapman, defendant Reszko, the surveyor of the "Map of Driveway Easement" survey dated February 11, 2023, infra, and the Town of Concord Code Enforcement Officer. At the conclusion of the one-day trial Justice Hannah gave the parties 30 days to file post-hearing memoranda briefs. Tr. of 9/28/2024, Pg. 140, l. 5-16. The memoranda submissions were filed on October 30, 2023. Doc. Nos. 33 and 34. At that time (as of 10/30/2023) the case was deemed submitted for the Court's determination on the narrowly scoped issue of "what rights come along with that easement and where is that easement located."

By way of letter correspondence to the Court from plaintiff's counsel dated November 7, 2023, the real-time urgency of exercising some immediate attention to the functional/physical contour and use of the subject easement pathway to accommodate plaintiffs' short-term and near-term needs to allow for access to their property by emergency personnel and their provider of [*2]propane gas for the upcoming winter season was put before the Court, and an appearance on the record in open court was held on November 14, 2023, to address those concerns.

At the conclusion of that appearance a short-term order was recited on the record to accommodate the immediate access needs of the plaintiffs vis-vis-vis the easement and Justice Hannah instructed counsel to draft an order to reflect his instructions on the outcome of the appearance. Tr. of 11/14/2023, Pgs. 46-50. Subsequently, and prior to counsel getting a proposed order to Justice Hannah for his review and signature he was appointed to the Appellate Division, Fourth Department, and the case was reassigned to this Court.

II. THE DOCUMENTARY RECORD AND RECORD REFERENCES

In addition to the affidavits and trial testimony of the witnesses the record of relevant and admissible evidence which has been accepted and evaluated by the Court consists of the following:

1. Plaintiffs' trial exhibits 1-8 marked into evidence by stipulation of the parties. Tr. of 9/28/2023, Pgs. 2-7.

2. Defendant's trial exhibits A-J marked into evidence by stipulation of the parties. Tr. of 9/28/2024, Pgs. 2-7.

3. To the extent the exhibits filed in the NYSCEF docket during the pleading and motion stages of the action duplicate the ones marked and admitted as trial exhibits they are deemed to be redundant but will be used for identification to their document number for ease of reference in this Decision.

Though certain photos (ground level photos of the easement trail, Google Map satellite images and video of the section of the easement ROW where plaintiffs are seeking their declaratory and injunctive relief) have been provided to assist the Court with getting up close and bird's-eye views of the property at issue the legal vortex of this case comes down to a review and analysis of the following documents:

a. The deed from Walter Duchnick to Norman Pawchuk dated August 6, 1959 (the "Pawchuk Deed), which describes the easement for ingress and egress to the plaintiffs' property as follows:

"Included in this conveyance is the right of ingress and egress over a proposed road of about sixty (60) feet on the lands of the party of the first part and entering on the north line of the lands herein to be conveyed."

Plaintiffs' Exhibit 1. There is no survey, diagram, sketch, drawing or other depiction of the proposed road attached to or separately accompanying the Pawchuk Deed, but it is undisputed that the property described therein was landlocked and inaccessible without the essential use and availability of a reasonable means of ingress and egress.

b. The Deed from the Estate of Norman Pawchuk to the plaintiffs, Paul F. and Margaret K. Chapman dated October 9, 1975 (sometimes referred to as the "Chapman Deed") conveying the same parcel described in the Duchnick Deed to the plaintiffs along with the following right of access to the property:

"Included in this conveyance is the right of ingress and egress over a road of on the lands now or formerly owned by Stanley Duchnick, as shown on the attached map of Whitford and Koelmel dated October 2, 1975."

Plaintiff's Exhibit 2.

c. The Map of Whitford and Koelmel dated October 2, 1975 (the "Whitford 1975 Survey"). Plaintiff's Exhibit 3. The Whitford 1975 Survey shows the northerly line of [*3]title that forms the outside edge of the easement ROW but does not show any specifically measured width of the ROW's "right of ingress and egress" except to reference the 60-foot wide "proposed road" first recited in the 1959 Pawchuk Deed. It is undisputed that no such road has ever been built or constructed.

d. The deed from Yu Chen Tsai to defendant Reszka dated October 13, 2020 (the "Reszka Deed"). Defendant's Exhibit D. This deed is silent of any reference to the parcel being the subject of an easement for ingress and egress to plaintiffs' property.

e. "Map of Driveway Easement" prepared by Trellus Land Surveying dated February 11, 2023 (the "Trellus 2023 Map"). Plaintiff's Exhibit 4. The Trellus 2023 Map shows all the affected parcels along Springville-Boston Road and a delineation of the easement between the north line of Springville-Boston Road that traverses all the parcels up to and including the plaintiffs' property.

f. The Trellus 2023 Map denotes a 60-foot-wide driveway easement (so-called) (referenced from the surveyor's access to and professional use of the Whitford 1975 Survey) but does not show any measured width(s) of the actual physically traveled and separately depicted "driveway" path. The surveyor from Trellus, John Nix, testified without objection that the physically contoured and observable width of the traveled "driveway" along and within the easement ROW was approximately 12 feet. Tr., 9/28/2023, Pg. 22, l. 7-19, and upwards of 15 feet by reason of some fluctuation "depending on where it is," Tr., 9/28/2023, Pg. 22, l. 15-16. Mr. Nix further testified without objection and undisputedly that the Whitford 1975 Survey contained a notation as follows: "Center line 10-foot wide traveled roadway as exists on this date." (italics added). Tr. 9/28/2023, Pg. 14, l. 2-5.

III. ANALYSIS AND THE LAW

The first issue is, "What is the scope of the easement for ingress and egress acquired by the plaintiffs in 1975?" In other words, what did it look like by way of any distinct description (size, shape, width, length, etc.) in the granting instrument or by identifiable characteristics that over time defined its intended use and purpose. The Appellate Division, Fourth Department, put it this way in Mertowski v. Werthman, 45 AD3d 1312 (4th Dept. 2007): "The extent and nature of an easement must be determined by the language contained in the grant, aided where necessary by any circumstances tending to manifest the intent of the parties (Hopper v. Friery, 260 AD2d 964, 966)." id. at 1313; accord Gates v. AT &T Corp., 100 AD3d 1216, 1218 (3rd Dept. 2012). In Hopper v. Friery, supra, the Third Department further articulated the legal threshold issue in this case as follows: "Further, where the easement expressly exists for the right of ingress and egress, "it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder" (Lewis v. Young, 92 NY2d 443, 449, 682 N.Y.S.2d 657, 705 N.E.2d 649), and the grantee is limited to use necessary and reasonable for that purpose (see, Minogue v. Kaufman, 124 AD2d 791, 792, 508 N.Y.S.2d 511)." id. at 966.

The Whitford 1975 Survey (a copy of which was attached to the Chapman Deed) depicts a northerly line of title for reference to an easement first created in the Pawchuk Deed in 1959 along with two notations: (1) a 60-foot wide "proposed road" as mentioned in the Pawchuk Deed, and (2) a 10-foot-wide traveled roadway as exists on this date." (italics added). The uncontradicted testimony of plaintiff Margaret Chapman was that at the time of plaintiffs' purchase of their property in 1975 they clearly knew and recognized that, (1) over the 16 years [*4]since the granting of the Pawchuk Deed, no "proposed road" had materialized into a real road, (2) the easement grant set forth in their (plaintiffs) deed did not reiterate the reference to the 60-foot wide "proposed road," (3) plaintiffs saw for themselves what the easement ROW was and had become over the years preceding their acquisition of title ("We were looking for a secluded piece of property that really would maintain I mean, we would be able to maintain seclusion there because of the terrain of it" Tr. 9/28/2023, Pg. 32, l. 24 through Pg. 33, l, 3), and (4) from 1975 through 2007 (32 years) plaintiffs accepted, used and traversed the easement ROW in the "no road" form and manner it had morphed into as a "compacted dirt road that's had gravel placed on it" which they accepted and took title to in 1975. Tr. 9/28/2023, Pg. 42, l. 1-7).

It is clear from the historical record that the course of dealing and the "circumstances tending to manifest the intent of the parties" for at least the 16 years preceding the plaintiffs purchase of their parcel was openly and plainly known and was thereafter fairly and reasonably accepted by the plaintiffs themselves through their own course of dealing and use of the easement ROW.

Based on the foregoing, the right of way for "reasonable use incidental to the purpose of the easement" (to wit, ingress and egress as first contemplated), Mosley v. Parnell, 211 AD3d 1530, 1532 (4th Dept. 2022), that was granted to the plaintiffs is not the "proposed" (so-called) and never realized 60-foot-wide "road" mentioned in the Pawchuk Deed and not expressly reiterated in the Chapman Deed. Instead, it is the approximately 12 to15-foot-wide "dirt road" path that the plaintiffs saw when they decided to purchase their parcel in 1975 and which thereafter has remained the only recognizable path of regular and expected use by them since then. As expressed by the Court in Mertkowski, "[a] grantor of an easement may convey or retain that which he desires. In other words he may create an extensive or a limited easement. It is from the language of the conveyance and the pertinent surrounding circumstances that we ascertain what was granted (citation omitted)." (italics ours) id. at 1313.

In Mertowski, the Court found the easement agreement to be broad enough in its terms to support the plaintiff's request to enforce the purpose for which the easement was granted. The inchoate wording in the 1959 Pawchuk Deed of a speculative 60-foot wide "proposed road" that never came into being and was not explicitly reiterated or recited in the deed conveyance to the plaintiffs in 1975 (notwithstanding the incorporated reference in the deed to the Whitford 1975 Survey which, noted a "full R.O.W. width of 60'" [referencing the liber and page of the Pawchuk Deed], but also noted the existence of the actual "traversed" 10 foot wide path that was in fact the recognizable modality of ingress and egress), coupled with the fact that the plaintiffs saw and knew exactly what the easement path of ingress and egress to their property looked like at the time of their purchase, compels a different finding and conclusion in this case. Here there was no fully enforceable agreement defining the actual time or legally enforceable commitment to construct the long forgotten "proposed road," and instead there was an actual easement ROW path, clearly coiffed and contoured over time, that was traveled and formed to a recognizable use and size over the years to accommodate the intended and reasonably contemplated purpose of the easement, to wit, to afford traversable ingress and egress access to the plaintiffs' property.

The Court's finding and determination on the location and scope of the subject easement ROW is that it exists in the form of a fluctuating 12 to15-foot-wide pathway from its point of beginning on the north line of Springville-Boston Road up to its terminus at the historically recognized point of entry to the plaintiffs' property, and shall continue to be open for full, free and unobstructed ingress, egress and access by and with all forms of reasonable and necessary [*5]travel to facilitate the plaintiffs' fair use, protection, preservation, security, and enjoyment of their property.

As with any affirmative easement, the plaintiffs have "an incorporeal right which is appurtenant to the ownership of the dominant estate and which constitutes a charge upon the servient estate (Rahabi v, Morrison, 81 AD2d 434, 437-438, 440 N.Y.S.2d 941" (internal quote omitted). Ironwood, LLC v. JGB Properties, LLC, 99 AD3d 1192, 1193-1194 (4th Dept. 2012). Given its undisputed purpose, the plaintiffs have the right to do all reasonable and necessary things to maintain the easement ROW "within the precept that any reasonable lawful use [by plaintiffs] within the contemplation of the grant is permissible." Mosley, supra, at 1532. Therefore, to the extent plaintiffs are asking for the right to make physical repairs to and within the 12-15-foot-wide easement ROW they have the right to do so. Indeed, in the absence of an agreement to the contrary (as is the case here), "the servient owner [defendant] is under no duty to make repairs" [string citation omitted]. Gates, supra, at 1218.

Correspondingly, while defendant as "the owner of the servient estate may not "unreasonably interfere[e]" with the rights of the dominant estate owner to use and enjoy the easement," (Ironwood, supra, at 1194), he (defendant as servient owner) "has a right to have the land's natural condition preserved as much as possible, and the dominant owner may not 'materially increase the burden of the servient [ ] estate or impose new and additional burdens on the servient estate [ ]" (string citations and internal quote omitted). Gates, supra, at 1218; accord Thibodeau v. Martin, 119 AD3d 1015, 1016 [3rd Dept. 2014], recognizing that "in the absence of a demonstrated intent to provide otherwise, a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired" (citing Lewis v, Young, 92 NY2d 443 at 449).

IV. DECISION AND ORDER OF DISPOSITION

The issues presented at the trial conducted on September 28, 2023, and the matters argued for temporary relief on November 14, 2023 (which relate back to the filing by plaintiffs of an Order to Show Cause at the commencement of the action [Doc. No.11] and are sub silentio subsumed into this final determination and disposition of the merits of the action as a whole), are hereby determined and decided as follows:

1. The easement right of way path first mentioned and created in the Pawchuk Deed of 1959 described as part of and within a then non-existent 60-foot "proposed road" (the "easement ROW") was intended and contemplated from its inception to provide a reasonable and incidental means of necessary ingress and egress to plaintiffs' property by all reasonably recognized forms of common and customary methods of travel and transportation utilized by the dominant holders of the easement. It was the only means and method of access to the property.

2. The "proposed road" was never built, and the easement ROW evolved and came into its form as a well-trodden and traveled path of land from 1959 to 1975 by its regular, routine, customary and practical use by plaintiffs' predecessors in title (Pawchuk) and all others who traversed the easement ROW over time so as to become a recognizable pathway approximately 12 feet wide with fluctuations thereof ranging upwards of 15 feet in width.

3. The easement ROW consisting of the path as it appeared and existed in its time worn and earthly contoured size and condition was seen and accepted by the plaintiffs at the time of their purchase of the property from the Pawchuk Estate in 1975. Though the deed [*6]conveyance to the plaintiffs included a reference to the Whitford 1975 Survey to accomplish a transfer of the easement ROW, it is undisputed that the 60-foot "proposed road" was nowhere to be seen in any form or manner nor reasonably believed or expected to come into existence. The easement right of way recited in the Chapman Deed in fact omitted a direct expression of any intent to reiterate a conveyance of a "proposed road," and the Whitford 1975 Survey incorporated into the deed expressly included a reference to a "10-foot" path used for ingress and egress. This is what the plaintiffs saw, accepted and bought in 1975.

4. The parties have stipulated and stated on the record that the easement ROW exists as a matter of record but request the Court to determine and define its legally cognizable scope, size and use. The finding and decision of the Court is that the easement ROW has become over the course of 65 years of regular travel and common use, a lawful right of way for the intended and contemplated purpose of providing ingress and egress to plaintiffs' property (as first depicted in the Whitford 1975 Survey in the form of a typical northwesterly line of title starting a point on the north line of Springville-Boston Road up to a point of entry to plaintiffs' property, and thereafter shown with more detail of the layout of the path in the Tellus 2023 Survey). The physical character of the easement ROW has been seen and recognized by all users and observers to have become a fully developed and well-traveled path of approximately 12 feet in width over the majority of its length from point of beginning up to its terminus at plaintiffs' property with fluctuating portions thereof expanding to approximately 15 feet in width.

5. Plaintiffs have the right to make such repairs and/or improvements in, upon and within the 12—15-foot portions of the easement ROW as they deem reasonable and necessary. The performance of such work by the plaintiffs, if undertaken at all, is subject to their legal responsibility for any damage or harm to the servient estate or defendant's adjacent property. Plaintiffs have the reasonable and necessary right to maintain the easement ROW to accommodate its intended use and purpose to have free and open access to their property.

6. The defendant is prohibited from erecting any obstruction that would impede or interfere with the fair, reasonable, incidental and necessary use by the plaintiffs and all other consensual, customary and regular invitee users of the easement ROW in all reasonable and customary forms of common and ordinary vehicular transportation to access and travel to and from the plaintiffs' property.

7. Correspondingly, so long as unimpeded access to plaintiffs' property in all forms of usual, customary, and ordinary means of pedestrian and vehicular travel is not unreasonably blocked or frustrated, the defendant is within his legal status and right to preserve and use the servient estate as he deems reasonable and necessary.

In furtherance of the foregoing, it is hereby

ORDERED, that plaintiffs' First Cause of Action is sustained, and the relief requested therein is GRANTED pursuant to the stipulation of the parties agreeing to the existence of an express easement covering the trail and path that is herein determined and found to be the easement ROW, subject to the rights, duties and obligations of the parties set forth in the third and fourth decretal paragraphs of this Order; and it is further

ORDERED, that the plaintiffs' Second, Third and Fourth Causes of Action are DISMISSED pursuant to the stipulation of the parties; and it is further

ORDERED and DECLARED, that plaintiffs' Fifth Cause of Action for a declaratory judgment is GRANTED in accordance with the determination set forth hereinabove as to the location and legal rights of the parties with respect to the easement ROW set forth above in above paragraphs 1 through 5 of this DECISION; and it further

ORDERED, that plaintiffs' Sixth Cause of Action for an injunction is partially GRANTED in accordance with above paragraph 6 of this DECISION, subject to the rights of the defendant set forth in paragraph 7; and it is further

ORDERED, that this constitutes the DECISION AND ORDER of the Court on all claims and causes of action raised in this action which shall be final and binding as a matter of law on the parties and all heirs, successors, assigns with the easement ROW being found and determined as an interest running with the land.