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Easement Grants Only the Right to Ingress and Egress, Not a Right to the Physical Passageway Itself

The Third Department determined Supreme Court should not have ordered defendant to remove a gravel driveway.  The easement over defendant’s land gave plaintiffs the right of ingress and egress.  Installing the gravel driveway did not impair plaintiff’s right to ingress and egress:

“[W]here the intention in granting an easement is to afford only a 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” … . Accordingly, “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” … .

Here, the deed establishing the right-of-way states that it is “for the purpose of ingress and egress to” plaintiffs’ property. The uncontroverted evidence established that, while the turnaround was previously comprised of hard-packed dirt, defendant installed a gravel driveway on the turnaround. Plaintiffs did not submit any evidence establishing that the gravel driveway impeded their use of the turnaround. Although plaintiffs established that they had a right of passage for the purpose of ingress and egress, they failed to further establish that defendant’s addition of a gravel driveway impaired that right to any extent. Thibodeau v Martin, 2014 NY Slip Op 04996, 3rd Dept 7-3-14

 

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