Simone v. Heidelberg

877 N.E.2d 1288 (2007)

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Nature of the Case

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Facts

In 1933, the owners of adjacent properties, 157-159 Driggs Street and 163-165 Driggs Street entered into an agreement creating a reciprocal easement, in which a portion of each other's property was to be used solely as a driveway. The easement was created so that the owner of 157, the dominant estate, could access a garage structure located thereon. In 1978, both parcels were acquired by common owners, the Accardos. In 1982, the Accardos subdivided 163-165 Driggs into separate estates. The deed transferring the purported servient estate, now 163 Driggs, to the Webers, made no reference to a driveway easement. In 1984, the Accardos then conveyed what had been the dominant estate, 157, under a deed to the Corrados that referenced the driveway easement, which by its terms burdened the neighboring property--163 Driggs. In 1993 P purchased 163 Driggs from the Webers under a deed that again made no mention of a driveway easement. In 1996, Heidelberg (D) purchased 157-159 Driggs from the Corrados, which deed contained language identical to the driveway easement language found in their immediate predecessor's deed. All deeds in both parcels' chains of title were duly recorded. By 2003, a 50-foot tree had grown on D's property, blocking access to the garage. There was also a fence around the rear yard of the property preventing automobile access to the garage. P's property also had a permanent deck constructed by the Webers in 1986 that covered a portion of the easement area. In December 2003, D had the tree and fencing removed to permit access to the garage via the driveway easement. P sued for a declaration that the easement was no longer in force or effect. P got the judgment in that the easement had been extinguished because Accardos became the common owner. The court ruled that it had not been recreated because the deed transferring the servient estate did not reference the easement. The Appellate Division reversed and had been recreated because the deed conveying the dominant estate referenced the easement and the servient estate was aware of its existence. P appealed.