Opinion
November 22, 1971
In an action for a mandatory injunction, plaintiffs appeal from a judgment of the Supreme Court, Putnam County, entered April 8, 1970, which dismissed their complaint, after a nonjury trial. Judgment reversed, on the law and on the facts, and new trial granted for the limited purpose stated hereinbelow, with costs to abide the event. Plaintiffs, purchasers of a new home from defendant developer, sought to compel the latter to enter upon adjoining properties within the development, under a reservation of drainage easement, in order to install drainage facilities for the purpose of carrying away surface waters which are eroding plaintiffs' land. Defendant developed the area with one family homes and, prior to the sale to plaintiffs, in a document recorded in the County Clerk's Office, entitled "Declaration of Covenants and Restrictions", had reserved a right to create drainage easements in connection with the development. The trial court held that the reservation of drainage easement was solely for the benefit of defendant and did not obligate it to assure adequate drainage facilities with respect to plaintiffs' land. We disagree with that determination. The "Declaration of Covenants and Restrictions" contains the following pertinent language: "STUART v. RICHARDS, INC., is offering said property for sale, and desiring to establish a uniform plan or scheme of conditions and restrictions respecting the types of buildings to be constructed on said lots and governing the use of said lots and use of any structures to be constructed thereon, does hereby impose for the common good and welfare of the community, the following conditions and restrictions, which shall run with the land and bind the heirs, successors and assigns of owners of land in the subdivision: Said premises will be conveyed subject to the following covenants, restrictions, reservations, easements and conditions, which shall extend to and be binding upon the heirs and assigns of the parties hereto: * * * SECOND: * * * the party of the first part [defendant] to maintain and install drainage in and along or through the premises herein" (italics supplied). The construction contract between the parties provided, inter alia,: "(30) Purchaser agrees to accept said premises and the same are subject to: covenants, restrictions, easements now in effect * * * to easements given or to be given to governmental authorities, the electric light, telephone, gas, water drainage, sewer, water lines or other utilities" (italics supplied). In our opinion, the language employed in the drainage easement covenant and the construction contract, when read in pari materia, burdened defendant with an implicit obligation to provide drainage facilities sufficient to prevent surface waters from flooding and eroding plaintiffs' plot. In view of the fact that the evidence adduced at the trial reveals that the surface waters flowing in defendant's development have created massive gullies and ruts on plaintiffs' land and have washed away much of its top layer of soil, we are constrained to hold that defendant's efforts to contain and divert such waters have been patently inadequate. Although the trial court's denial of injunctive relief herein may have been correct, the denial did not deprive plaintiffs of their right to establish damages ( Frey Realty Co. v. Ten West 46th St. Corp., 285 App. Div. 932). We therefore grant a new trial for the limited purpose of ascertaining the amount of plaintiffs' damages with respect to the restoration of their property and the installation of adequate drainage facilities. We believe, under the facts of this case, that the granting of an injunction would be oppressive ( Forstmann v. Joray Holding Co., 244 N.Y. 22). Rabin, P.J., Hopkins, Munder, Latham and Shapiro, JJ., concur.