Orange & Rockland Utilities
Original Owner (Bradford)
William Bradford originally owned land on both sides of the
Sold East Bank (Sold to Crane)
Bradford sold East Bank to Alfred Crane.
Bradford retain exclusive hunting and fishing rights over the
Bradford -> Crane -> Orange -> Clove Develop
West Bank (Sold Part of the West Bank to Crane with Deed
Bradford told part of the West Bank to Crane.
The Deed Restriction (Hydroelectric Plant, Reverse
Restricting its use
by Crane, his heirs, executors and assigns
to the erection of hydroelectric and
generating plants, but reserved to himself exclusive
hunting and fishing rights over that part of the west bank land
Crane convey to Orange and Rockland Utilities
In 1927, Crane conveyed the restricted property, subject to the
covenant, to Rockland Light and Power Company, now known as
Orange and Rockland Utilities, Inc.
Clove Development Corporation now Holds title
That company and Clove Development Corporation, its wholly owned
subsidiary which now holds title to the west bank property
originally deeded to Crane, are the plaintiffs.
Remaining West Bank
Bradford continued to own the remaining west bank.
Bradford died in 1934.
Remaining West Bank (Bradford Successors Conveyed Philwold
Philwold had a partnership with Wechsler.
Wechsler takes 2,325 acres
Wechsler withdrew from partnership and took 2,325 acres.
The hunting and fishing rights also went with the land.
Pl (Orange Utilities) Seeks Judgment
Plaintiffs' complaint seeks judgment declaring that the
restrictive covenant was personal to
Bradford and, therefore, is
not enforceable by the
successors to Bradford's other real property.
Or in the alternative that the
restrictive covenant be extinguished pursuant to
section 1951 of the Real Property Actions and Proceedings Law.
Special Term Court
Special Term dismissed the action, without reaching the merits,
holding it barred by limitations
and rejecting plaintiffs' argument
that the statute was tolled because plaintiffs had possession
and undisputed title to the property.
- Covenant ran with the land
The court held that the covenant ran with the land.
The covenant was therefore
enforceable by defendant,
- covenant currently serves no purpose
BUT, concluded that it should be extinguished because it found,
for reasons hereafter detailed, that the
covenant currently serves no
purpose and renders plaintiffs' land valueless.
- defendant had failed to prove any damage
Concluding that defendant had
failed to prove any damage
resulting from the extinguishment of
the easement, the Appellate Division awarded no
damages, but provided that defendant could seek damages for any
injury to his land which might occur in the future as a result
of the extinguishment of the restrictive covenant.
We agree that the action is not barred by limitations or
We agree that the benefit as well as the burden of the
covenant runs with the land,
We agree that the Appellate Division properly concluded
that the covenant should be extinguished pursuant to section
1951 of the Real Property Actions and Proceedings Law, and
We agree that defendant's proof did not entitle him to
damages for extinguishment of the covenant.
We disagree, however, with the Appellate Division's reservation
to defendant of the right to seek
future damages as a result of the extinguishment of
the covenant and conclude that, the
hunting and fishing easement not being
involved in this action, the only right that
defendant Wechsler retains is to
enforce such easement rights as he has should there be a future
interference with his reasonable enjoyment of the easement.
Subdivision 2 of section 1951 of the Real Property Actions and
a court in any action seeking relief against a restrictive
covenant or a declaration with respect to its enforceability
to cause its extinguishment
"if the court shall find
that the restriction is of no actual and substantial benefit to
the persons seeking its enforcement or seeking a declaration or
determination of its enforceability, either because
the purpose of the restriction has
already been accomplished or,
by reason of changed conditions
or other cause,
its purpose is not capable of accomplishment, or
for any other reason"
But requires payment to the party
who would otherwise be entitled to
enforcement of the covenant of such
damages as he will sustain
from its extinguishment.
Pl (Orange Utility)
Plaintiffs point out that in 1940 while the servient parcel was
held by Rockland Light and Power Company, the
City of New York
condemned all of
Rockland's riparian rights in the Neversink River.
Riparian Right - The rights, which belong to landowners through
whose property a natural watercourse runs, to the benefit of
such stream for all purposes to which it can be applied
The plaintiffs no longer
have the right to use the servient parcel for hydroelectric
purposes, and that as presently restricted, the land
can be used for nothing else.
Defendant Wechsler argues
- it enhances his hunting and fishing rights
The statute empowers a court to extinguish a restrictive
covenant only when it no
longer has value to the person who seeks to enforce it.
The restrictive covenant has value
to him because it
enhances his hunting and fishing rights and keeps the property
near to his unspoiled.
1958 Report of Law Revision Commission
That report makes clear that restrictive covenants were intended
to be subjected to the doctrine of relative hardship.
We agree that the restriction in issue was properly
If the covenant is enforced there is
no use whatsoever to
which the restricted land can be put by plaintiffs, for the
restriction limits them to one
single use and that use is, by reason of the
Plaintiffs would thus be required to maintain the land in such
manner as to avoid liability for injury to the users of it under
the hunting and fishing easement and pay taxes on it but could
make no other use of it.
Bearing in mind that, as the Law Revision Report suggests, such
drastic limitation may well be void as against public policy and
that both the background of the statute and its wording ("by
reason of changed conditions or other cause, its purpose is not
capable of accomplishment, or for any other reason" [emphasis
supplied]) we have no
hesitancy in concluding that the impossibility of constructing a
hydroelectric plant (the building of which, though
not required by the express wording of the conveyance to Crane,
was practically compelled
by the restriction imposed and was clearly in the
contemplation of the parties to the grant creating the
sufficient to trigger the power of extinguishment, if
on balance that appeared to be the equitable course.
Nor do we find any error of law in the Appellate Division's
conclusion that on balance the restriction should be
Was their not actual and substantial benefit
The issue is not whether Wechsler obtains any benefit from the
existence of the restriction but whether in a balancing of
equities it can be said to be, in the wording of the statute, "of
no actual and substantial benefit" (emphasis
Defendant Wechsler argues
The value of both his remaining land and his hunting and fishing
easement are enhanced if plaintiffs' property is kept in
Opinion, no substantial benefit measured
As to the land, Wechsler presented general opinion evidence
indicating that its value would be enhanced, but nothing from
which the importance or substantiality of that benefit could be
measured, nor any dollars and cents proof by which it could be
Measured against the burden to plaintiffs of maintaining land of
which no use can be made,
we cannot say that the Appellate Division erred in
concluding that enhancement in value of the remaining land was
Wechsler has not been affected in any way the law should
Wechsler retains right of reasonable enjoyment of the easement.
Wechsler failed to establish damages and is barred from seeking
damages in the future for injury to his real property.
Proper to deny present damages.
Error to reserve future damages.