## Facts

- A fox-hunting organization obtained rights over a 285-acre parcel through a 1987 “Lease and Easement Agreement” with the prior owner.
- The agreement permitted entry and use of the land for fox-hunting purposes and related trail maintenance for a 75-year term unless sooner terminated pursuant to the agreement or law.
- The defendant later acquired the property, opposed hunting, and undertook steps to convert the land into a wildlife habitat and nature preserve.
- In 1995, the defendant ejected the organization’s members while they were performing routine trail maintenance.
- The organization sued for a declaration that it held an easement and for an injunction against interference.
- The landowner argued the agreement created, at most, a revocable license that he terminated; he also asserted termination based on alleged unlawful conduct and sought to redirect the use to a smaller portion of the property.
- The trial court denied the landowner’s summary-judgment motion and granted the organization’s cross-motion dismissing affirmative defenses and counterclaims; later, the trial court also ruled the landowner retained development rights and set a trial on damages.

## Issues

1. Whether the 1987 agreement created an easement or a revocable license allowing unilateral termination by the landowner.
2. Whether the landowner was entitled to summary judgment declaring termination of the easement based on the organization’s alleged unlawful activities.
3. Whether the landowner could, consistent with the agreement, develop the property and redirect the location or paths associated with the hunting use.
4. Whether summary judgment may rest on an unpleaded defense where the opposing party is not surprised or prejudiced.

## Decision

- The Appellate Division affirmed the orders and interlocutory judgment in the relevant respects.
- The court held the agreement created an easement in favor of the organization, not a revocable license, and therefore could not be unilaterally revoked on the landowner’s theory.
- The court upheld dismissal of the landowner’s second affirmative defense and all counterclaims addressed in the interlocutory judgment.
- The court rejected the landowner’s request for a declaration of termination based on alleged unlawful activities on summary judgment.
- The court affirmed rulings recognizing the landowner’s right to develop the property under the agreement, subject to the organization’s easement, and left related disputes (including damages) for trial.

## Legal Principles

- The legal character of a property interest turns on the nature of the rights granted, not the label used by the parties; an instrument labeled an “easement” may still be a license, and vice versa.
- A long-term, structured right to enter and use land for a specified purpose may constitute a nonrevocable easement enforceable against successor owners, rather than a personal, revocable license.
- As a general rule, summary judgment should not be granted on an unpleaded defense; however, a court may grant summary judgment on an unpleaded defense when reliance on that defense does not surprise or prejudice the opposing party.
- A servient landowner may retain development rights, but those rights must be exercised consistently with and subject to the dominant estate’s easement; fact questions may require trial where the scope and impacts of development are disputed.

## Conclusion

The court treated the fox-hunting organization’s 75-year use right as an easement rather than a revocable license, affirmed denial of the landowner’s efforts to terminate or defeat the easement on summary judgment, and recognized that the landowner retained development rights subject to the easement, with remaining scope-and-damages disputes to be tried.


Millbrook Hunt, Inc. v. Smith, 249 A.D.2d 281, 670 N.Y.S.2d 907 (N.Y. App. Div. 2d Dep’t 1998)