Orange And Rockland Utilities v. Philwold Estates

Interpreted in light of the setting in which imposed and the language used, the restrictive covenant in plaintiffs predecessors deed limiting use of its land to erection of a hydroelectric plant ran with the land as to both benefit and burden. Because that covenant renders the land wholly useless under present circumstances, plaintiffs are however, entitled to judgment extinguishing the covenant pursuant to section 1951 of the Real Property Actions and Proceedings Law. Damage to the dominant land not having been shown, the judgment of extinguishment properly awarded defendant no damages. However, the judgment improperly reserved for future determination the issue of damages to an easement over the servient land also held by the owner of the dominant land. Plaintiffs have not sought extinguishment of the easement and defendant, as easement owner, as distinct from landowner, is not entitled to damages for extinguishment of the restrictive covenant. The order of the Appellate Division should, therefore, be modified by deleting therefrom so much thereof as preserved the right of defendant hereafter to seek damages for extinguishment