MEMORANDUM

SUPREME COURT, SUFFOLK COUNTY
IAS PART XIV
BY UNDERWOOD, JR., J.S.C.
DATED: February 18, 1994
INDEX NO.: 85-5656
____________________________________

(1) ORIG. RETURN DATE: 07/22/93
FINAL SUBMISSION DATE: 12/22/93
MG; CASEDISP

(2) ORIG. RETURN DATE: 10/01/93
FINAL SUBMISSION DATE: 12/22/93
MD; CASEDISP

(3) ORIG. RETURN DATE: 10/01/93
FINAL SUBMISSION DATE: 12/22/93
MD; CASEDISP

(4) ORIG. RETURN DATE: 12/22/93
FINAL SUBMISSION DATE: 12/22/93
MG; CASEDISP

____________________________________
BREAKERS MOTEL, INC., ALFRED F.
NIELSEN and LOUISE NIELSEN,
WILLIAM J. BRUDER, ATLANTIC
BLUFFS CLUB, LTD., GEORGE POTTS
and MARGARET C. POTTS,

Plaintiffs,

-against-

SUNBEACH MONTAUK TWO, INC., and ;
NICOLA BlASE, Individually and
as President and Treasurer of
Sunbeach Montauk Two, Inc.,

Defendants.
____________________________________

TWOMEY, LATHAM, SHEA & KELLEY, ESQS.
Attorneys for Pltfs - LOUISE NIELSEN, ATLANTIC BLUFFS, GEORGE POTTS & MARGARET G. POTTS
33 West 2nd Street
P.O. Box 398
Riverhead, New York 11901

JOSEPH GORMLEY, ESQ.
Attorney for Pltf - BREAKERS
225 Broadway, Suite 1201
New York, New York 10007

ESSEKS, HEFTER & ANGEL, ESQS.
Riverhead, New York 11901 Attorneys for Defendants
108 Main Street, Box 279
Riverhead, New York 11901

____________________________________

"There is nothing which so generally strikes the imagination, and engages the affections of mankind, as the right of property; or that sole and despotic dominium which one man claims and exercises over the external things of the world, in total the right of any other individual in the universe." (Commentaries On The Laws of England, exclusion of Book 2, Chpt. 1, p. 2). The case at bar demonstrates the timelessness of Sir William Blackstone's observation.

The parties are owners of various parcels of land in Montauk. The defendants own a location which fronts the Atlantic Ocean. The plaintiffs own certain inland parcels. From a historical perspective, this area has enjoyed a unified title which was disturbed only in the latter part of the nineteenth century. From pre-history until the ascension of Wyandanch as sovereign of the Montauks and suzerain over several other Algonquin tribes, the environs of Montauk were the exclusive domain of Wyandanch's people. In the late 17th and early 18th Centuries, the greater Montauk area passed into the hands of the "Proprietors' (a group of East Hampton men who collectively exercised ownership) . In 1879 one of the proprietors brought an action in partition against the' other owners which ultimately resulted in a referee's sale of all of Montauk "more or less subject to the Montauk Tribe of Indians... (defendant's Exhibit "B" accompanying the affidavit of Mr. Fred Ackley). This Reservation in the referee's deed causes us to note that the property which is the subject of this action, lies entirely outside the area known as 'Indian Field", the last remnant of the ancestral Montauk Tribe lands. Therefore, the Court is not constrained to comment on the questionable propriety of the 1910 decision which declared this venerable and noble Algonquin nation to be extinct (Pharaoh v. Benson, 69 Misc. Rep. 241 (Supreme, Suffolk Co., 1910), affirmed 164 App. Div. 51, affirmed 222 N.Y. 665).

The purchaser at the 1879 referee's sale was a Mr. Arthur Benson. After Mr. Benson's death, the greater Montauk parcel was bequeathed to his children (with a life estate for his wife). In 1904, the Benson heirs engaged the prestigious landscape architectural firm of Olmsted Brothers (Frederick Law Olmsted reknowned as the architect for New York City's Central Park and the lesser known but equally inspiring Washington Park in Albany) of Brookline Massachusetts to prepare a "Plan of Part of Hither Hills Montauk L.I.", filed as Map #496. parcels of land were conveyed subsequent to the filing of this map. It is the choice of words on the map itself and on deeds conveying property after the filing of the Olmsted map, that give rise to the instant controversy.

Plaintiffs contend that the filed Olmsted map (also referred to as Map #496) and the language of their deeds evidences an express grant of easement over and for the use of defendants' property. The instant action for declaratory judgment (pursuant to RPAPL Article 15) was commenced to enforce the alleged right to common use of the areas marked "Hither plain Reservation" and "Bathing Reservation" on the Olmsted map and to ~ enjoin defendants from interfering with plaintiffs' common use of and access over said Reservations. Defendants, however, contend that the corporate defendant is possessed of title in fee simple, free and clear of any specific (or implied) easement over the property for the use of the plaintiffs. Both plaintiffs and defendants have moved and cross-moved for summary judgment At this juncture it is appropriate for the Court to compliment both plaintiffs' and defense counsel for the eloquence and thoroughness of their respective briefs in support of their applications. The first question the Court asks is whether the matter sub judice lends itself to resolution via summary judgment. The extraordinary relief of summary judgment is to be used sparingly since it deprives a party of his day in Court (Henderson v. City of New York, 178 A.D.2d 129 (1st Dept., 1991], 576 N.Y.S.2d 562). It is appropriate only in instances where the Court thoroughly examines the merits of the action and determines that no triable issue of fact exists (Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept., 1990]). Even the color of a triable issue prevents the granting of this relief (Benincasa v. Garrubbo, 141 A.D.2d 636 (2nd Dept., 1988]). In a dispute where the facts are uncontroverted and the intent of the parties can be discerned from the face of various writings (as in the matter sub judice), the Court is confined to an interpretation of law and the matter is "ripe" for summary judgment (American Exp. Bank Ltd. v.. Uniroyal Inc., 164 A.D.2d 275 [1st Dept., 1990), appeal denied 77 N.Y.2d 807). Given the antiquity of the submitted real property records, the Court will accept the information stated thereon as "prima facie evidence of their contents" (CPLR 4522). We also note that the depositions of the parties are not inconsistent on the salient issues before the Court.

Although the affidavits of the plaintiffs' and defendants' experts (on chain of title) significantly differ in their reasoning and conclusions, the Court has utilized these affidavits simply for a recitation of the chain of title (and supporting documentary evidence) and not the contrasting (and improper) legal conclusions they contain. Therefore, we find that summary relief is an appropriate remedy for the case at bar.

The standard of review concerning the plethora of documentary exhibits, affidavits and deposition transcripts (spanning almost a century) is a familiar one. Over twenty years ago, this court wrote:

"It is the court's duty sitting in Equity, to attempt to get at the substance of things and to ascertain, uphold and enforce the rights and duties which spring from the real relations of the parties. It will never suffer the mere appearance and external form to cancel the true purposes, objects and consequences of a transaction.. to interpret the meaning of a contract, at the time and place it was made, all the surrounding circumstances at the time necessarily throw light upon it, and this rule applies equally to an ambiguous writing as to an unambiguous one (citations omitted]" (Sargent v. Halsey, 75 Misc.2d 624 [special Term, Suffolk Co., 1973], 348 N.Y.S.2d 661, affirmed 42 A.D.2d 375).

Easements are the prosaic expression of Edmund Burke's exalted maxim that society is a contract "...between those who are living, those who are dead, and those who are to be born"(Burke's Politics, Alfred Knopf, New York Pub. 1949, p.318). An easement is an interest in land created either expressly or impliedly from surrounding circumstances, by grant or agreement. The holder of an easement is conferred the right to some benefit or dominion from the estate of another party (Copertino v. Ward, l00-A.D.2d 5651 567 (2nd Dept., 19841, 473 N.Y.S.2d 494, 497). An easement may 'be created in perpetuity (Quinn v, County of Nassau, 33 Misc.2d 701, 702 [Sup. Ct., Nass. Co., 1961], 215 N.Y.S.2d 305), and is commonly set forth by deed (Warren's Weed Real Property, Easements, Sec. 3.01; 49 N.Y.Jur.2d, Sec. 31). A covenant limiting the use of land imposed to benefit another parcel of realty is referred to as a negative easement (43 N.Y.Jur.2d, Deeds Sec. 152, Witter v. Taggart, 78 N.Y.2d 234, 237 [1991], 573 N.Y.S.2d 146). The Court in Witter also stated that a purchaser of land is charged with notice in matters going back to original grantor. It "restrains a landowner from making certain use of his land which he might have done lawfully but for the restriction" (Huggins v. Castle Estates, 36 N.Y.2d 427, 430 (19751, 369 N.Y.S.2d 80 citing Trustees of Columbia College v. Lynch, 70 N.Y. 440).

The question of whether an easement exists on the subject parcels before the Court will be resolved by determining the intent of the Benson heirs when they caused the filing of certain deeds and the Olmsted map (Map #496). If we find that an easement was created at that time, the intervening years have not demonstrated any circumstances which would warrant an extinguishment. Conversely, if an easement was not created at that point in time, the intervening years do not provide any succor for the plaintiffs since the legitimacy of their claim is predicated on the intent (and manifestation thereof) by the immediate heirs of Arthur Benson.

PLAINTIFFS ARGUMENT

Plaintiffs' parcels were conveyed by deeds which do not contain identical language. Indeed, plaintiffs' admit that their respective claims fall into four separate categories:

[1] Potts and Louise Nielsen, Potts I, II and Nielsen I - These parties claim express grants of easements uninterrupted in their chain of title from the Benson heirs;

(2) Louise Nielsen and Atlantic Bluffs Club - They claim express grants "benefitting them as property owners" since they took their title from Arthur Benson, his heirs or assigns;

[3) All plaintiffs claim an implied grant from filed Map #496 and its common plan; and finally

[4) All plaintiffs claim to be the holders of a dominant estate benefitted by a negative easement created by restrictive covenants burdening the "Reservations". The gravamen of all the plaintiffs' claims, however, is predicated on language which appears on their deeds (or in their chain of title) and on Map #496. plaintiff, Potts, points out that on page six of her deed dated August 7, 1951, recorded November 30, 1953, it states that:

"A general right of way is hereby reserved to the parties of the first part in common with all grantees from them or from the late Arthur W. Benson, deceased, or his heirs or assigns of land at Montauk, over such of the roads laid down on said map as may be opened from time to time to the nearest public road or highway, and also a right of way over such roads as may be opened from time to time to the various lots or parcels of land known and designated on said map as "Reservations", which said Reservations shall be for the common use of the said parties of the first part their grantees, or the grantees of the late Arthur W. Benson, deceased, or his heirs or assigns, of land at Montauk. A right of way is also reserved, in favor of pedestrians only, along the beach at the foot of said cliffs or bluffs between the foot of said cliffs or bluffs and the edge of the ocean or of Block Island sound." [emphasis ours) (plaintiff's exhibit "F").

Map #496 (the "plan of Part of Hither Hills Montauk L.I.") is a detailed rendering of a proposed resort community in Montauk. Most of the subdivisions are numbered and contain house/stable designations. There are several unnumbered areas, however, including two larger parcels named "Bathing Reservation" and "Hither Plain Reservation".

Applying this language, plaintiffs claim that the defendants' deed is burdened with a negative easement. They contend that: (1) The intent of the original parties was to burden the servient and benefit the dominant estate; (2) the covenant touches and concerns the land; and (3) there is privity of estate (Orange and Rockland Utilities, Inc. v. Philwood Estates, Inc., 52 N.Y.2d 253 [1981) 437 N.Y.S.2d 291).

Privity is demonstrated by showing that the property derives from the original grantor who imposed a covenant and whose property benefitted thereby and that the burdened party also derived his property from the original grantee who took subject to the restrictive covenant (Malley v. Hanna, 65 N.Y.2d 2S9, 291-292 (1985), 491 N.Y.S.2d 286, 288).

Plaintiffs' further cite the-holding in Huggins v. Castle Estates, supra, for its discussion of easements via "Plat Maps". Negative easements are created via plat map notations under two circumstances, either when they are (1) apparent by nature and manner of indication, or (2) by a common plan (Id. at 432-433). This standard was applied in a somewhat analogous situation in Weil V. Atlantic Beach Holding Corp., 1 N.Y.2d 20 E1956), 150 N.Y.S.2d 13{ and in Moody V. Filipowski, 146 A.D.2d 675 [2nd Dept., 1989]. Moody entailed the granting of a preliminary injunction (which limits its applicability to the matter sub judice) but did include a discussion of using a plat map as evidence of an easement. Patten Corporation V. Association of property Owners of Sleepy Hollow Lake, Inc., 172 A.D.2d 996 [3rd Dept., 1991) 568 N.Y.S.2d 970, involved a similar dispute. The Court emphasized that the parties took from common grantor and were entitled to rely on public record (namely a filed map) for certainty in determining if they were possessed of (or burdened with) an easement.

Plaintiffs are undisuaded by the absence of the purported easement on the defendants' deed. Since a servient estate cannot unilaterally terminate an easement, the failure of the servient estate's deed to recite same cannot affect the easement's viability (Zunno V. Kiernan, 170 A.D.2d 795 [3rd Dept., 1991] 565 N.Y.S.2d 900; Wood V. Simon, 43 Misc.2d 500, 503, 251 N.Y.S.2d 621; 49 N.Y.Jur.2d Easements and Licenses in Real Prop., Sec. 171 at 293).

Defendants however, offer a different interpretation of Map #496 and the language in the various deeds submitted by the plaintiffs. Defendants' salient arguments will be discussed seriatim.

DEFENDANT'S ARGUMENT

It is uncontroverted that "Map No. 496" was abandoned in 1938. It is also uncontroverted, however, that deeds recorded after this date referred to Map #496. Assuming arguendo, that an easement was created in 1905, defendants assert that old Tax Law Sec. 32 (now Sec. 560 Real Property Tax Law [Abandonment of Lots)) bars the utilization of Map #496 for any function and cites Roger Homes 2nd Corporation v. Tilford, 276 App. Div. 864 [2nd Dept., 1949), 93 N.Y.S.2d 154, leave to appeal denied 300 N.Y. 763, which held that a "... certificate of abandonment. ..was an abandonment for all purposes of the subdivision..." ' Defendants also cite Lowe v. DiFilippo, 12 A.D.2d 788 (2nd Dept., 1961), 209 N.Y.S.2d 652 to same effect. In Levine V. Young, 104 N.Y.S.2d 1004 [Sup. Ct., Nass. Co., 1951) a subdivision map was filed in 1926. In 1929 all land except a small portion was conveyed. The new owner filed a new map in 1930 which changed street lines, etc. The Court held that the notations on the older map would not bind the new owner of the property. "The new owner had the absolute fee and with that the right to use his property and dispose of it as he saw fit" (Id. at 1008).

In light of these decisions, defendants claim that Map #496 was extinguished in 1926 when the greater portion of 'the Montauk tract was conveyed to Montauk Beach Development Corp. and was formally extinguished by abandonment in 1938. Defendants point out that plaintiffs' claim easements to two areas but that Map #496 contains three parcels which are designated "Reservation" and three more which are described as "Ocean View Reservation, Hither Plain Reservation, and Bathing Reservation". Four of the six parcels are subdivided and developed, apparently ignoring any purported designation of common use. This causes defendant to assert that a uniform development scheme was never implemented (Huggins V. Castle Estates, Inc., supra; compare Graham v. Beermunder, 93 A.D.2d 254 [2nd'Dept., 1983), 462 N.Y.S.2d 231).

Defendants also contend that there was never an express grant of an easement. Defendant points out that the plain language of "grant" or "easement" never occur in any of the deeds. For example, the Potts II deed of 1954 never conveyed the property "together with an easement". In support, defendants cite Clark V. Devoe, 124 N.Y. 120 (1891]:

"Hence only by the use of plain and direct language of the grantor, should it be held that he created a right in the nature of an easement and attach it to one parcel as the dominant estate and include the other servient thereto for all time to come. We think the language used by the parties permits no such result" (at 126).

Demonstrating the continued viability of this rule, Willow Tex Inc. v. Dimacopoulos, 68 N.Y.2d 963, 965 [1986], 510 N.Y.S.2d 543 also held that:

"To create an easement by express grant there must be a writing containing plain and direct language evincing the grantors intent to create a right in the nature of an easement rather than a revocable license" [citations omitted]. The writing must establish unequivocally the grantor's intent to give for all time to come a use of the servient estate to the dominant estate. The policy of the law favoring unrestricted use of realty requires that where there is any ambiguity as to the permanence of the restriction to be imposed on the servient estate, the right of use should be deemed a license, revocable at will by the grantor, rather than an easement (see, Huggins v. Castle Estates, supra at 430; see also, Crosdale v. Lanigan, 129 N.Y. 604, 610)."

In support of its position, defendant, Sunbeach, refers to the entire language in various deeds and the specific sections pertaining to covenants. Defendants state that the first mention of covenants and restrictions is in the deed from Manufacturers Trust, Harold Fowler and Thyrza Benson Fowler to Montauk Properties Investing Corp. recorded July 19, 1956. The' language reciting certain specified restrictions on use is as follows:

"FIRST: There shall not be erected or allowed upon any party of the premises hereby conveyed any brewery, slaughterhouse.,

SECOND: No stable or tables shall be erected upon any lot, except on the sites designated for a stable...

THIRD: No drainage of any kind from any house....

IT IS EXPRESSLY UNDERSTOOD AND AGREED... that the said several covenants above specified shall attach to and run with the land;"

There is no mention of another covenant. The next prior deed was in 1938 from Mr. Hulse as referee (appointed at the foreclosure of the 1925 mortgage from the Benson heirs to the Montauk Development Corporation) when property was reconveyed to Thryza Benson Fowler, R. Stuyvesant Pierrepont and the Brooklyn Trust Co., recorded July 27, 1938

The property was conveyed subject to the following:

"2. To the covenants, restrictions and agreements set forth in the deed made by Thyrza Benson Flagg, individually, and R. Stuyvesant Pierrepont and Brooklyn Trust...

7, To easements, if any, of the several owners of parcels of land specifically excepted in said mortgage, or released from the lien thereof, to the extent provided in the conveyances hereinbefore recited or in the release hereinbefore referred to, in and over any roads to the nearest public highway, and in and over any roads that may be opened to the so-called 'Reservations' on the said Hither Hills and Wompenanit maps" [It further describes the covenants at Liber 1167, pages 350-361J.

"IT IS UNDERSTOOD AND AGREED that nothing herein contained, or in said maps of the property so filed at Riverhead as aforesaid, or by the filing thereof, shall be construed as a dedication of any of the roads upon the said maps to the public, but except as hereinbefore reserved, the parties of the first part hereby convey all of their right, title and interest in and to the bed of said roads, and in and to all lands designated op said maps as "Reservations", save in and to the "Reservations" hereinbefore specifically excepted, and convey all interest of the parties of the first part in and to any rights-of-way along the beach at the foot of cliffs or bluffs, between the foot of said cliffs or bluffs and the edge of the Ocean or of Block Island sound, save that portion of the beach lying in front of the plot of land hereinbefore reserved and designed as lots Nos. 146 (sic] to 143, both inclusive...

The document further states:

"And the said parties of the first part covenant that they have not done or suffered anything whereby the said premises have been encumbered in any way whatsoever."

Defendant also admits, however, that the deed says (Liber 1167, p. 360):

"The premises hereby conveyed are conveyed subject to such rights-of-way as may have been granted or conveyed by the parties of the first part and by the late Frank S. Benson, Mary Benson, Jane A. Benson and Arthur Benson, or any one or more of them, to the public roads or highways and to the various lots or parcels of land, known and designated on said map entitled 'General Plan for Subdivision of Wompenanit, Montauk, L.I., property of Frank Sherman Benson and Mary Benson' above referred to, and on said map entitled 'Hither Hills, Montauk, L.I.' also referred to, as 'Reservations', and subject to any and all rights conveyed by persons herein named, or any of them, in and to the various lots or parcels of land known and designated on said maps, as 'Reservations'; subject also to any right-of-way now existing in favor of pedestrians only, along the beach at the foot of cliffs or bluffs, between the foot of said cliffs or bluffs and the edge of the Ocean or Block Island Sound".

Assuming arguendo, that an easement over defendant's land was created, to what extent and for what purpose? The documents are silent. If the Court was inclined to say an easement existed, defendants contend that a trial would be necessary to determine its limits (see Sordi v. Adenbaum, 143. A.D.2d 898 (2nd Dept., 1988], 533 N.Y.S.2d 566).

How then, do the defendants explain the meaning of the deed language and map designation cited by plaintiffs? Defendants contend that they refer to a reservation of a right by the grantors to themselves, not to a dominate estate (Warren v. Protano, Inc., 155 N.Y.S.2d 685 (Supreme, Westchester Co., 1956)). Additionally, at the time of the filing of the Map (1905), the grantors were required to address the Jus Publicum, the land between the midline of the hightide and the midline of the lowtide that is subject to public access for bathing, swimming, etc., since the public domain over the foreshore would not be decided for another thirty years (Borax Consol, Ltd. v. City of Los Angeles, 296 u.s. 10 (1935); Tiffany v. Town of Oyster Bay, 234 N.Y. 15, 20).

Defendants also assert that plaintiffs fail to possess an easement by implication. In the 1956 conveyance to Montauk Properties, the Benson heirs made no reference to the restrictions on defendant Sunbeach's property. plaintiffs can't have easement by implication because none of them have claimed that they saw or relied on Map #496 at the time of purchase and none of them can claim a true necessity for the easement.

There are four prerequisites to an easement by implication: (1) unity of ownership at one time for the dominant and servient estates; (2) while held jointly, the subordinate use of one portion was created; (3) the claimed use is physically and plainly apparent upon inspection; and (4) the use is necessary to reasonable use of the estate (see Huggins, supra). Necessity is an imperative precondition (Pastore v. Ziatniski, 122 A.D.2d 840 [2nd Dept., 1986], 505 N.Y.S.2d 903. Although plaintiffs claim necessity, the presence of public beaches and alternative means of traveling to same indicate that the so-called "necessity" is actually a matter of convenience. An appurtenant easement only passes when it is necessary and essential to the proper enjoyment of estate granted, not a mere convenience which benefits the estate (Root v. Wadhams, 107 N.Y. 384, 394 [1887))

Defendants also assert that the construction of an easement is barred by the "stranger to the deed rule". A grantor may not reserve an easement in a deed in favor of a stranger to the deed (Estate of Thompson V. Wade, 69 N.Y.2d 570, 574 [1987), 516 N.Y.S.2d 614). The rationale behind this rule is that public policy favors "certainty in title to real property, both to protect bonafide purchasers and to avoid conflicts of ownership, which may engender needless litigation" (Thompson at 574, 516 N.Y.S.2d at 615; Estate of Owen v. Bermand, 151 A.D.2d 718 (2nd Dept., 1989], 543 N.Y.S.2d 150).

DISCUSSION AND FINDINGS OF FACT

As a general rule, the free and unencumbered use of realty by an owner is the favored policy of the Court (Huggins v. Castle Estates, Inc., supra). In applying this principle, the Court in Greek Park, Inc. v. Grodner;. 75 N.Y.2d 981 (1990), 556 N.Y.S.2d 509, stated, 'We add only that a party seeking to enforce a restriction on land use must prove, by clear and convincing evidence, the scope, as well as the existence, of the restriction [citations omitted)". A restrictive covenant should not be expanded beyond the clear meaning of its terms (Aronson V, Riley, 87 A.D.2d 879 [2nd Dept., 1982], 449 N.Y.S.2d 544). Language capable of two constructions must be construed in favor of the least restrictive use (Sunrise Plaza Associates v. International Summit Equities Corp., 152 A.D.2d 561 (2nd Dept., 1989), 543 N.Y.S.2d 490, Thrun v. Stromberg, 136 A.D.2d 543 [2nd Dept., 1988), 523 N.Y.S.2d 163.

Despite defendants' eloquence, and the deference we have accorded the corporate defendant as the fee-holder, a review of Map #496 in conjunction with the deeds conveying the various properties persuades us that plaintiffs possess an easement for traverse over and for use of the areas marked "Reservation" (on Map #496) which are located on defendants' property. The compelling language for the Court is found in the body of several of the deeds:

"A general right of way is hereby reserved to the parties of the first part in common with all grantees from them or from the late Arthur W. Benson, deceased, or his heirs or assigns.. ,also a right of way over such roads as may be opened from time to time to the various lots or parcels of land known and designated on said map as "Reservations", which said reservations shall be for the common use of the said parties of the first part their grantees, or the grantees of the late Arthur W. Benson, deceased, or his heirs or assigns, of land at Montauk".

Defendant has simply failed to offer an adequate alternative to construing this as an easement. All of defendants' alternatives require a tortuous construction which nullifies the clear language contained in the deed. We also add that this language provides a clear meaning for the designations on Map #496 (Fisher V. Liebman, 137 A.D.2d 485 (2nd Dept,, 19881, 524 N.Y.S.2D 720). The Court will not adopt a position which prevents a section of a contract from having effect and essentially renders that section of the writing meaningless (Two Guys from Harrison-N.Y. Inc. v. S.F.R. Realty Associates, 63 N.Y.2d 396 (1984); Weiss V. Weiss, 52 N.Y.2d 170 [l98l]; Trump-Equitable Fifth Ave. Co. v. H.R.H. Const. Corp., 106 A.D.2d 242 (1st Dept., 1985) aff'd 66 N.Y.2d 779).

It is irrelevant that some of the deeds do not contain a full recitation of the easement. The deeds which are silent on the issue of the Reservations also state that the land is conveyed subject to all rights previously conveyed. "The transfer of a dominant estate includes the conveyance of any easements attached to the property" (See, Chain Locations of America, Inc. V. Westchester County, 20 Misc.2d 411, 413 (Supreme, Westchester Co., 1959) 190 N.Y.S.2d 12, aff'd 9 A.D.2d 936 [2nd Dept., 1959], 196 N.Y.S.2d 573.)

Additionally, an appurtenant-easement can retain its viability without a specific recitation in the deed. Defendants' contrary authority pertains to implied easements by necessity. As the Court in Chain supra, stated at 413-414 ". . .an already existing easement appurtenant passes to the grantee of the dominant estate as an appurtenance even in the absence of any express reference". Cases discussing implied easements have consistently been distinguished from the transfer of express easements previously created by the grant of reservation (Harris v. Curtis, 139 App. Div. 393, 124 N.Y.S. 263; Beeman v. Pawelak, (Supreme) 96 N.Y.S.2d.204, 222; Donovan V. Weppner, 131 Misc. 903, 228 N.Y.S. 473). Any party can enforce the restrictive covenants if they derive title through a continuous lawful succession from the original grantor (Malley v. Hanna, 65 N.Y.2d 289 [1985), 491 N.Y.S.2d 286).

Likewise, the "stranger to the deed" rule is inapplicable to the matter before the Court. The "stranger to the deed" rule applies only to a conveyance of property containing a reservation or exception affecting the conveyed property and has no bearing on affirmative grants of easements to specified beneficiaries. In Jakobson V. Chestnut Hill properties, 106 Misc.2d 918, 921, 922 [Supreme, Nassau Co., 1981), 436 N.Y.S.2d 806, 810, it was held that, "While the Court is cognizant of the fact that as a general proposition a reservation creating an easement cannot be made in favor of a stranger to a conveyance, Vol. 2 Warren's

Weed, Easements, Sec. 4.02; Tuscarora-Club of Mubrook v. Brown, 215 N.Y. 543 [1915), in the instant action the court considers the aforementioned subject to" clause to be an affirmative grant and not a reservation, and further, a clear expression of the intent of the grantor to create this right of way."

Additionally, the "stranger to the deed" rule is inapplicable in instances where there is a common scheme or development plan (as in the case at bar) (DeBourbon V. Engelberg, 162 A.D.2d 872, 873 [3rd Dept., 1990], 558 N.Y.S.2d 223, 224). In DeBourbon, the Court distinguished a case relied upon by defendants when it held:

"The stranger to the deed rule expressed in Matter of Estate of Thompson v. Wade, 69 N.Y.2d 570, holds that a deed with reservation or exception by the grantor in favor of a third party does not create a valid interest in favor of that third party. Defendant contends that the 'stranger to the deed' rule mandates reversal and dismissal of the complaint. The relative date of the transfer is not fatally defective if, as plaintiff contends, the easements and restrictions were embraced in a common scheme or general plan of development [citations omitted)".

Contrary to defendants' assertions, we find that the plan delineated on Map #496 was successfully implemented. Plaintiffs have clearly established that between fifty and ninety lots were conveyed in accordance with the designs on Map #496.

Moreover, we remind the defendants that as a Court sitting in Equity, we may apply third-party beneficiary principles to allow a stranger to the deed to enforce a covenant. "Acceptance of title to the land subject to [a) restrictive covenant imposes upon the grantee an obligation which a Court of equity will enforce not only against a grantee but against any subsequent owner who takes notice of the covenant" (Voegler v. Alwyn Improvement, 247 N.Y. 131~ 135 [1928]).

The formal abandonment of Map #496 in 1938 was ineffectual to extinguish the easement since we find that the certificate of abandonment was for tax purposes exclusively. In Fennica Builders v. Hersh, 151 A.D.2d 679 [2nd Dept., 1990), 553 N.Y.S.2d 180, the Court discussed old Tax Law Sec. 32, now Real Property Tax Law Sec. 560, and stated: "The original owner's certificate of abandonment of a subdivision pursuant to former Tax Law Sec. 32.. did not evince an intention on the original owner's part to abandon the right of ingress and egress from the property to the nearby public highway" (Id. at 679).

Any purported abandonment would be ineffectual because an easement can be abandoned only by the party holding the easement (in this case the owners of the plaintiffs' parcels) (Iacovelli v. Schoen, 170 A.D.2d 1044 (4th Dept., 1991], 566 N.Y.S.2d 428; 49 N.Y.Jur.2d, Easements, Sec. 182, p. 306). This abandonment would require not only a renunciation by an individual fee-holder of a dominant estate, but "the united action of all lot owners for whose benefit the easement was created" (O'Hara v. Wallace, 83 Misd.2d 383, 387,[Supreme, Suffolk Co., 1975), 371 N.Y.S.2d 570 modified on other grounds, 52 A.D.2d 622).

RPAPL Sec. 1951 is also of no avail to the defendant. In order for a restriction on the use of land to be declared unenforceable it must appear "that the restriction is of no actual and substantial benefit to (O'Hara V. Wallace the persons seeking its enforcement... it must nevertheless be alleged and proven that the restriction is of no 'actual and substantial benefit' (see, RPAPL 1951)..." Garrett v. Village of Asharoken, ____ A.D.2d ____ [2nd Dept., 1992), 596 N.Y.S.2d 1002).

Finally, we turn to defendants' claim that this matter should be dismissed for failing to join indispensable parties (CPLR 1001). We draw defendants' attention to the Court's April 26, 1988 decision, which denied the same motion. We noted, "Moreover, one co-owner of an easement is not an indispensable party in a suit by another co-owner to enjoin interference with the easement and to compel removal of any obstruction of that easement (citations omitted)". We have considered defendants' remaining contentions and find them similarly without merit.

Therefore, the motion and cross-motion of the plaintiffs are granted and the defendants' cross-motion is denied. The Court declines to award costs.

This Court directs that judgment be entered in favor of the plaintiffs and against the defendants. Defendants' property is burdened with the covenant described herein and are without the right to erect fences, berms or other structures on the Reservations described herein and are forever barred from making claim to erect such structures. Defendants are directed to remove any and all fences and structures and restore said Reservations to their original open and natural state, forthwith. Defendants and their employees or agents are further directed to forbear from preventing plaintiffs from enjoying their common use of said Reservations.

This memorandum constitutes the order and judgment of this Court.

WILLIAM L. UNDERWOOD, JR. J.S.C.