Oneida County Mobile Home Sales, Inc. v. Niagara Mohawk Power Corp.

Simons, J. (dissenting).

I dissent from that portion of the court’s decision which grants plaintiff summary judgment against defendant, Niagara Mohawk Power Corporation.

Defendant was the grantee of three affirmative easements permitting the construction and maintenance of electric service lines in plaintiff’s trailer park. It is its contention, not factually resolved on this record, that the trailer owners wrongfully encroached on these easements.

Defendant’s easements could be lost only by abandonment, conveyance, condemnation or adverse possession for the prescriptive period. In this case the prescriptive period is 10 years, not two years under section 2001 of the Real Property Actions and Proceedings Law, as the majority hold. Section 2001 applies only to negative easements and restrictive covenants. The difference between affirmative easements and negative easements, broadly stated, is this: an affirmative easement gives me the right to do something on your property; a negative easement or a restrictive covenant, gives me the right to prevent you from doing something on your property. The purpose of section 2001, as I understand it, is to quiet titles and to prevent burdensome litigation by neighbors over restrictions on the use one makes of his own property. It was not intended to restrict a grantee of an easement from making use of his own easement to the full extent of the interest conveyed (see Recommendations of Law Revision Commission Relating to Presumption of Release of Right to Enforce Certain Covenants Restricting the Use of Land, 1963 Report of NY Law Rev Comm, pp 341-346, NY Legis Doc, 1963, No. 65[K], pp 3-6). If section 2001 is applicable to the facts of this case, then it is similarly applicable to all utility companies maintaining thousands of miles of service equipment over customers’ lands and places the burden of a short Statute of Limitations on them that is neither necessary nor desirable.

Furthermore there are numerous questions of fact, particularly those relating to when the trailers were parked within defendant’s easements, whether the defendant had knowledge of them and whether the defendant had knowledge of them sufficient to estop it from seeking relief here. There is also a question concerning the proper construction of the easement *395which may well require the introduction of parol evidence since it is contended that the easement granted included the right to remove encroaching structures. The majority opinion recognizes that there are factual issues; nevertheless, contrary to elementary rules of law it resolves them upon the affidavits and incomplete record before us and grants summary judgment to plaintiffs.

The judgment should be reversed and the matter remitted for trial.

Hancock, Jr., and Witmer, JJ., concur with Cardamone, J. P.; Denman, J., not participating; Simons, J., dissents and votes to reverse the judgment and deny the motion in an opinion.

Judgment affirmed, with costs.