9 N.Y.3d 177 (2007)
An easement extinguished by common ownership of the dominant and servient estates is not re-created upon severance unless the deed conveying the servient estate contains language re-establishing the easement.
Summary
This case addresses the conditions under which an easement, extinguished by common ownership, can be re-created. The New York Court of Appeals held that an easement is not re-created when the properties are later separated, even if the deed conveying the dominant estate references the easement and the owner of the servient estate has actual knowledge of it. The easement must be explicitly re-established in the deed conveying the servient estate to bind subsequent purchasers. The court also clarified the high bar for establishing an easement by necessity, requiring absolute necessity at the time of severance, not mere convenience arising later.
Facts
In 1933, owners of adjacent properties created a reciprocal driveway easement. In 1978, the properties came under common ownership, extinguishing the easement. In 1982, the common owner subdivided the property, conveying the purported servient estate without mentioning the easement. In 1984, the common owner conveyed the purported dominant estate, referencing the driveway easement in the deed. In 1993, the plaintiffs purchased the servient estate with no mention of the easement in their deed. In 2003, the defendants, the dominant estate owners, removed obstructions to use the driveway. Plaintiffs sued to prevent this, arguing the easement was not in effect.
Procedural History
The Supreme Court granted summary judgment to the plaintiffs, declaring the easement extinguished and not re-created. The Appellate Division reversed, holding the easement was re-created due to the reference in the dominant estate’s deed and the servient owner’s knowledge. The Court of Appeals granted leave to appeal.
Issue(s)
1. Whether an easement extinguished by common ownership is re-created when the properties are later separately sold and the easement is noted in the deed conveying the dominant estate, and the owner of the servient estate has actual knowledge of its existence.
2. Whether the easement can be sustained as an easement by necessity.
Holding
1. No, because an encumbrance must be recorded in the servient chain of title to impose notice on subsequent purchasers of the servient land.
2. No, because the “necessity” for the easement arose after the severance of the estates and is merely a convenience, not an absolute necessity.
Court’s Reasoning
The Court of Appeals reasoned that while the easement was extinguished by common ownership, it was not properly re-created. Relying on Witter v. Taggart, the court emphasized that an encumbrance must be recorded in the servient chain of title to provide notice to subsequent purchasers. The deed conveying the servient estate to the plaintiffs’ predecessor did not mention the easement; therefore, the subsequent references in the dominant estate’s deeds were ineffective. The court stated, “[A] grantor may effectively extinguish or terminate [an encumbrance] when…the grantor conveys retained servient land to a bona fide purchaser who takes title without actual or constructive notice of the covenant because the grantor and dominant owner failed to record the covenant in the servient land’s chain of title.”
The court rejected the argument for an easement by necessity, stating that the necessity must exist at the time of severance. Here, the need to access the garage only arose later when the defendants removed a tree, making it a mere convenience, not an absolute necessity. The court emphasized that “the necessity must exist in fact and not as a mere convenience” (Heyman v. Biggs, 223 NY 118, 126 [1918]). The court distinguished the facts from a case where the dominant estate was landlocked at the time of severance.