In 1968, plaintiff Eric H. Huggins purchased a house from defendant, a developer, in a residential ■subdivision in the Town of New Hartford, a Utica suburb. In the same year, plaintiff James M. Lawrence purchased a building lot from defendant in the same subdivision. Both parcels of property were zoned R-2 (residential) as was a lot across the road which was owned by defendant and was part of the same subdivision. The area surrounding the subdivision, however, was developed commercially and various commercial structures were in full view of plaintiffs’ property.
At the time of their respective purchases, plaintiffs were given deeds which contained no physical description of the conveyed land. Instead, each contained a reference to a numbered lot on a plat map of the subdivision filed with the County Clerk and each also contained a notation that their titles were “ subject to all restrictions, covenants, easements and rights of way of record ’ ’. On the plat map, the boundaries of plaintiffs’ lots were clearly delineated as were the boundaries of the lot across the road from theirs. The map also showed that this latter parcel was zoned for residential purposes.
There is some evidence that at the time defendant sold plaintiffs their property, it intended to develop the third parcel with further residential structures in accordance with its zoning restriction and told plaintiffs of its plans. In the following year, however, the Town of New Hartford rezoned the area in which this lot was located from residential to commercial, and defendant contracted to sell it to an automobile dealer for a showroom.
Plaintiffs objected to the sale and commenced an action to enjoin it. They urge that since the plat map, which showed the third parcel to be zoned residential, was incorporated by reference in their deeds and since their conveyances were made “ subject to all restrictions, covenants, easements and rights of wAy of record ’ ’, the deeds and the plat map must be read together to impose a negative easement over the property in their favor, thereby prohibiting defendant from ever using it for other than residential purposes. Plaintiffs further urge *33that defendant is, in any event, estopped from selling the property for commercial use because of the representations it made as to intended future residential development at the time of their purchase.
The trial court, after hearing testimony from 19 witnesses, found that no easement had been created by incorporation of the plat map in the deed and found further that plaintiffs ’ claim that they relied upon defendant’s representations were not substantiated by the evidence so as to warrant application of the equitable principle of estoppel. We agree.
An easement is an interest in land within the meaning of the Statute of Frauds and, therefore, can only be created by written instrument, subscribed by the grantor (Wiseman v. Lucksinger, 84 N. Y. 31; General Obligations Law, § 5-703). However, the incorporation of a filed plat map in a deed makes the plat map part of the conveyance (Seamans v. Gulf Refining Co., 237 App. Div. 202, affd. 264 N. Y. 433) and, in some situations, the grantee may thereby acquire, an easement by implication over other lands shown on the map (White v. Moore, 139 App. Div. 269). Such a rule is often applied under circumstances in which certain areas of the plat map have been clearly designated as parks, squares or beaches for the use of lot owners (Wilkinson v. Nassau Shores, 1 Misc 2d 917, affd. 278 App. Div. 970, mod. 304 N. Y. 614) but the principle is not absolute and it is the intention of the seller which governs each situation (Fieder v. Terstiege, 56 N. Y. S. 2d 837, affd. 273 App. Div. 982). Thus, in' White v. Moore (supra), it was held that where lots were conveyed with reference to a map showing a park, the grantees acquired an easement in the park because each of their lots fronted on it and its existence was a strong inducement to purchase. But where a lot was conveyed with reference to a map showing merely that an adjacent parcel of land was vacant, no easement by implication arose (Dalton v. Levy, 258 N. Y. 161) nor did one arise where a map showed a parcel designated as a “ 1.0 Reserve Strip ” (Warren v. Protano, Inc., 155 N. Y. S. 2d 686). It must be shown that the seller unequivocally intended to create an easement in favor of the purchaser (Roma Development Corp. v. Jones, 115 N. Y. S. 2d 189) and it has often been said that the policy of the law is to favor the free and unobstructed use of property (Premium Point Park Assn. v. Polar Bar, 306 N. Y. 507; Baxendale v. Property Owners’ Assn., 138 N. Y. S. 2d 76, affd. 285 App. Div. 1148, affd. 309 N. Y. 871) and is jealous of easements, the burden being on the party asserting one to prove it clearly (Zeiger v. Interborough R. T. Co., 254 *34App Div. 908, affd. 280 N. Y. 516; Warren v. Protano, Inc., supra).
We think, as did the trial court, that there was no such clear proof that an easement was intended in this case. Here, the plat map did not designate the third lot as a park, a square or a beach but merely reflected an accurate notation of the status of its current zoning classification. A zoning classification is a temporary thing and is always subject to change by a local legislative body in accordance with law. Here, there was nothing apparent on the face of the map to show that defendant, as seller, intended to subject this parcel contractually to any more permanent form of restriction than was imposed by the zoning ordinance. Furthermore, as the trial court pointed out, neither of the plaintiffs placed any reliance upon the provisions of the plat map at the time of their purchases, and there is doubt as to whether either of them ever saw it. By adopting plaintiffs ’ position, the majority of this court is opening the door to a variety of encumbrances upon parcels of property never intended by those who subdivide and develop real estate. The effect of its decision is to facilitate the freezing of zoning designations appearing on plat maps into easements in favor of nearby or adjacent lot owners and thereby to effectively strip local legislative bodies of a portion of their power to control land use within their jurisdictions via rezoning.
The trial court was correct in finding that there was insufficient evidence on the record to warrant application of an estoppel against defendant based upon representations that might have been made to plaintiffs at the time they purchased their property. The doctrine of estoppel is an equitable principle. Its applicability rests largely on the facts or circumstances of the particular case (Parsons v. Lipe, 158 Misc. 32, affd. Parsons v. First Trust & Deposit Co., 243 App. Div. 681, affd. 269 N. Y. 630). It requires a representation by the party to be estopped inconsistent with a position later taken and also requires that the party seeking to invoke the estoppel has relied on the representation to his detriment (Rosenthal v. Reliance Ins. Co., 25 A D 2d 860). Here, the trial court, after hearing the witnesses and observing their demeanor, concluded that, whereas defendant may have represented to plaintiffs at the time of their purchase that it intended to develop the third parcel for residential use, plaintiffs did not place any reliance upon what was said. The court reasoned that plaintiffs could readily see that other property surrounding their location was being developed commercially and had they placed any importance upon the *35future residential development of the third lot, they would have sought more formal assurances in the form of a writing. Plaintiffs in this case were not without experience in practical affairs. One was the athletic director of Utica College and the other was an executive of the Marine Midland Bank.
We have the authority to review questions of fact as well as questions of law and we may reverse findings of a trial court when such are against the weight of the evidence. However, our authority is not unlimited and in all cases we must recognize that the Trial Judge, who has seen and heard the witnesses and has opportunity to question them and to guide the course of the trial, has an advantage over the appellate Judge who must reach his conclusion on the written record alone (People ex rel. MacCracken v. Miller, 291 N. Y. 55). Where, as here, the trial court’s conclusions were necessarily based largely upon the credibility of witnesses, its decision should be given great weight (Amend v. Hurley, 293 N. Y. 587).
The trial court’s decision was sound and its judgment should be affirmed.
Wither and Goldman, JJ., concur with Simons, J.; Marsh, P. J., and Moule, J. dissent and vote to affirm the judgment in an opinion by Moule, J.
Judgment reversed, on the law and facts, with costs, and judgment granted in favor of appellants in accordance with opinion by Simons, J.