Case Law Summaries

Cadiz v. Karolasz

• Opinion Date: July 19, 2001
• Real Property Law
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EASEMENTS—Just because a common driveway created by a deed, though wide enough for vehicular passage, becomes too narrow for parking vehicles, doesn’t mean that the easement “to create a party driveway” must be extinguished.

A duplex residence consisted of two sides, numbered 581 and 583. A narrow driveway ran past the 583 side of the building into the backyard where stood a garage. There were three doors into the garage. The two garage doors were on the 583 side, and the passenger entry door was on the 581 side. A new owner of the 581 side asked the owners of the 583 side to make arrangements to remove their belongings from the “581 portion” of the garage. The owners of the 583 side had enjoyed full use of the garage for more than 35 years. It was their position that the entire garage belonged to them and that their neighbor had no rights to any portion of it. They also asserted that their neighbor had no right to use the driveway to obtain access to the garage. Mediation failed, and the behavior of one owner to the other became unpleasant. The deed to the 583 side said, in part, “It being the intention of ... [583’s] grantors ... to create a party driveway for the owners, their heirs and assigns, of properties known as No. 581 and 583 Chestnut St. ... to use in common at all times ... The rights and privileges in the driveway shall also enure for the benefit of the tenants, agents and servants of the respective owners of premises at [581 and 583].” Testimony in the Chancery Division established that the driveway was too narrow to accommodate today’s automobiles. Consequently, the lower court included in its order the provision that: “The [owners] of 583 shall at all times keep the common driveway servicing the premises open and unobstructed so that both [the owner of 581 and the owners of 583] can utilize same for access to the garage. This is not intended to permit vehicular access as the Court has found that vehicular access is impossible. This portion of the order is, however, intended to confer upon both [the owner of 581 and the owners of 583] the right to use the common driveway in order to gain access to the garage or garages at the rear of the property for other than vehicular purposes.” The owners of 583 contended that the this finding resulted in extinguishment of the easement and that the lower court erred when it permitted the owner of 581 to continue to use the driveway. The Appellate Division disagreed, pointing out that the deed language created a common driveway, with a common use. Consequently, the rights of the owners of 583 could rise no higher than the rights of the owner of 581. The Court was disturbed that the owners of 583 provided no reason why they should be allowed to continue to use the driveway for other than vehicular purposes and the owner of 581 could not. Further, it distinguished a case which had extinguished a 100 year old easement that originally was created to allow for the passage of “horses carriages and otherwise for the purpose of ingress and egress to and from barns and stables…,” when the Court in that earlier case had concluded that such language did not create “a general right of way for any purpose or use in the future.” Instead, the Appellate Division understood the lower court’s finding, “in the context of this case,” as referring to the prior practice of parking in the driveway by the owners of 583.

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