HELMER v. McKERROW (1999)

This matter, which concerns a dispute over the location of an easement over a portion of defendant's property, was previously before this Court (Helmer v. McKerrow [appeal Nos. 1, 2], 207 A.D.2d 967, 968, 617 N.Y.S.2d 417, 418).   Subsequent thereto, plaintiffs served defendant with a demand that he comply with the terms of the easement and thereafter moved to hold defendant in contempt for his failure to comply with the provisions of the judgment requiring him to remove obstructions from the right of way.   In opposition to the motion, defendant submitted the affidavit of a licensed surveyor asserting that plaintiffs were using a roadway across defendant's property that was not in the deed description.

Supreme Court declined to find defendant in contempt for interfering with the right of way, but went on to grant plaintiffs an absolute and unencumbered easement described by the same metes and bounds description contained in the prior amended final judgment that was reversed by this Court in Helmer v. McKerrow ( [appeal No. 1] supra ).   We agree with defendant that the court thereby directly contravened our prior decision.   Furthermore, the only motion before the court was plaintiffs' motion to hold defendant in contempt.

We stated in Helmer v. McKerrow ( [appeal No. 1] supra, at 968, 617 N.Y.S.2d 417) that “there is no proof in the record that supports the metes and bounds description of the easement in the amended judgment or that establishes that the description of the easement contained in the deed was inaccurate.   The only description of the easement proved at trial was the description contained in the deed and in the pleadings;  that description was properly set forth in the original judgment.”   The court may not clarify any alleged “confusion” on a motion for contempt by conducting a personal inspection of the site.   In the absence of proof in the record supporting a metes and bounds description or establishing that the description of the easement contained in the deed is inaccurate, the court erred in amending the description of the easement.

We modify the order, therefore, by vacating those ordering paragraphs containing a metes and bounds description of the easement.

Order unanimously modified on the law and as modified affirmed without costs.

MEMORANDUM: