February 8, 2023 – The Appellate Division, Second Department, has upheld a dismissal of an easement holder’s claim that the easement was “exclusive” and prohibited the owner of the property from using or widening the road, in Berg v. Cahill.  The action involved an intersection of title and zoning issues, because the plaintiffs were objecting to a proposed residential/golf course development project on the ground that the developer could not use a road to access the property, based on their claim that they held an exclusive easement over the road.  The Court noted that  “truly exclusive” easements are disfavored, and easements “will be deemed nonexclusive ‘unless the opposite intent unequivocally appears,'” before concluding that, in this case, the instruments did “not contain unequivocal language manifesting an intent to create an easement which excluded the fee owner of the trust property.”  The court also rejected the plaintiffs’ arguments that the owner was prohibited from widening the road or that the plaintiffs could claim that the development would interfere with the plaintiffs’ use of the road before the development was put into effect.