Opinion
September 30, 1994
Appeal from the Supreme Court, Wayne County, Parenti, J.
Present — Balio, J.P., Lawton, Wesley, Doerr and Boehm, JJ.
Judgment unanimously affirmed without costs. Memorandum: We affirm for reasons stated at Supreme Court (Parenti, J.). We add only that there is no merit to the contention that the clauses in the well and waterline agreement between the parties are repugnant. That agreement unambiguously granted plaintiffs an easement for four years, unless plaintiffs made a "bona fide effort to drill or dig a well on their land". The record supports the court's determination that a bona fide effort was made. The agreement further provided that, if plaintiffs' efforts to obtain water on their property were unsuccessful, the easement would continue until municipal water became available. "When the intent as to the extent of an easement is affirmatively evidenced by language in the grant * * * a contrary intent may not be implied * * * [The language] alone may be considered in determining the true intent of the parties to the grant, to the exclusion of the circumstances surrounding the conveyance and the situation of the parties" (Miller v. Edmore Homes Corp., 285 App. Div. 837, 838, affd 309 N.Y. 839).