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Leonard BILES, Jr., Jeanine Biles, Gilbert D. Stevens, Jill P. Hanley, Debra M. Stanley, Darla S. Stevens, Craig J. Stevens, Mark Melville, Sophia S. Melville, June D. Spivey, Lawrence Post, Joann L. Post, and Ariel Ministries, Plaintiffs, v. Randall WHISHER, Defendant.
Plaintiffs, who own neighboring waterfront properties abutting Trout Pond in Chesterfield, New York along its westerly side, commenced this action seeking a determination pursuant to article 15 of the Real Property and Proceedings Law as to their right to use a portion of an existing roadway, known as Macavoy Way. The roadway at issue, made up of dirt and gravel, runs north and south along the westerly side of Trout Pond through Plaintiffs' properties and, as is relevant to this action, through Defendant's property, where it connects to Trout Pond Road south of Plaintiffs' properties at the southern end of Trout Pond. At its north, Macavoy Way connects to Tierney Road. Most of Plaintiffs' real property are improved by seasonal residences. Plaintiffs claim adverse possession of and a rightful easement over Macavoy Way through Defendant's real property, and further asserting that this roadway is necessary to access their properties. Plaintiffs also seek damages sustained after Defendant placed boulders across Macavoy Way in December 2015, thus preventing Plaintiffs from accessing their properties, together with an order permanently enjoining Defendant from interfering with Plaintiffs' use of the roadway in the future.
Plaintiffs now move this Court for a preliminary injunction, preventing Defendant from interfering with Plaintiffs' use of the alleged easement and compelling Defendant to remove any obstructions that would prevent Plaintiffs from using the roadway. Defendant opposes the relief sought.
“[A] party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor” (Karabatos v. Hagopian, 39 AD3d 930, 931 [3d Dept 2007] [internal quotation marks and citations omitted] ). Plaintiffs bear the burden of establishing through affidavits and other proof supplying evidentiary detail that they would be irreparably damaged if an injunction were not granted before trial.
Plaintiffs allege that their deeds originated from a 1958 deed, which conveyed real property from Rose Van L. Burnham to Eron Moran. Relying on the purported “title history” set forth in the Complaint, it appears that certain real property was conveyed to Rose Van L. Burnham in 1955, which included part of the real property formerly owned by P.W. Prime and Roy Bashaw. In 1958, Burnham conveyed a portion of the real property to Eron Moran, reserving to herself “and to her successors and assigns a right of way for all purposes over and across the premises hereby conveyed over a convenient route from the roadway crossing Prime or Bashaw property to the remaining lands of the party of the first part.” In 2009, Angeline M. Whisher conveyed certain parcels of property—the Prime and Bashaw properties—to Defendant. Defendant's deed provides that the conveyance is subject to
a right-of-way for all purposes in, upon, over and across a strip of land sixty feet (60') in width leading from the general northwesterly corner of the lands described, with its center line generally following the center line of the existing woods road and right-of-way to the westerly bounds of the public highway known as the Trout Pond Road
(Complaint, Exhibit G, page 5).
All but one of Plaintiffs' deeds reference the right-of-way reserved by Burnham or a right-of-way for ingress and egress over an existing roadway running north and south on the westerly side of the Trout Pond (see Complaint, Exhibits A, B, C, D; E; compare Complaint, Exhibit F).
In support their request for a preliminary injunction, Plaintiffs submit the sworn statement of Plaintiff Craig Stevens, who attests that, during his family's ownership of his property, Macavoy Way was maintained and utilized by all Plaintiffs, and their predecessors in title, to access their properties. Moreover, Macavoy Way from Trout Pond Road, through Defendant's and Plaintiffs' properties, has been utilized by utility companies and emergency personnel, including police, ambulance services, and firefighters, over the years. Steven also attests that, while Macavoy Way extends northerly to meet with Tierney Road, that portion of the roadway is not driveable, as there are springs under the road, and a portion is very narrow near a cliff, among other problems.
Stevens attests that, in December 2015, Defendant placed boulders and other large rocks on Macavoy Way, which prevent him and the other Plaintiffs from accessing their properties. Plaintiffs attach photographs of large boulders and rocks that span the width of what appears to be a dirt and gravel roadway. While Plaintiffs have requested that Defendant remove the boulders, Defendant has refused to do so. Stevens has also attached an estimate in the amount of $2,140.00 for removal of the boulders.
In opposition to a preliminary injunction, Defendant does not dispute blocking Macavoy Way with boulders and rocks, but asserts that, while Plaintiffs and their predecessors in title were given permission to drive along the roadway, Plaintiffs never had a valid easement. Defendant attests that he advised some of the Plaintiffs in December 2015 that he would be closing Macavoy Way due to Plaintiffs' “excessive use” of the roadway. Defendant claims that any easement Plaintiffs have runs north to Trout Pond Road.
In this case, the existence of the easement is predicated on the assertions that Plaintiffs have a valid easement appurtenant, by implication, and by prescription. An easement appurtenant is created when such easement is “(1) conveyed in writing, (2) subscribed by the person creating the easement and (3) burdens the servient estate for the benefit of the dominant estate” (Niceforo v. Haeussler, 276 AD2d 949, 950 [3d Dept 2000] ). To establish an implied easement, three requirements must be satisfied: “(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land retained” (Abbott v. Herring, 97 AD2d 870, 870 [3d Dept 1983], affd 62 NY2d 1028  [citation omitted] ). To establish a claim for a prescriptive easement, on the other hand, is it Plaintiffs' “burden to demonstrate by clear and convincing evidence that their use of the roadway on the property at issue was for the benefit of their property and was adverse, open and notorious, continuous and uninterrupted for the [10 year] prescriptive period” (Beretz v. Diehl, 302 AD2d 808 [3d Dept 2003] [internal quotation marks and citations omitted).
Plaintiffs have presented evidence that both Plaintiffs' and Defendant's titles were held by a common grantor—Burnham. It also appears that in 1958, Burnham, while reserving a right to cross the Prime and Bashaw properties to her south, conveyed that real property to Moran, which property was eventually conveyed to Defendant. The 1958 Burnham to Moran conveyance created a written easement for the benefit of the dominant estate (now Plaintiffs' land) burdening the servient estate (now Defendant's land). There are also appurtenance clauses and references to such a right-of-way in the parties' chains of title. Although the original grant does not specifically describe the easement, for purposes of this application for a preliminary injunction, the record establishes that Plaintiffs and their predecessors utilized the same portion of Defendant's property for close to 50 years, thus establishing the location of the easement (see Green v. Mann, 237 AD2d 566, 567 [2d Dept 1997] ). Along these lines, for purposes of this application, there is sufficient information in the record to establish that the roadway's use was meant to be permanent.
Plaintiffs have alleged that the right-of-way is necessary to access their properties, as Macavoy Way to the north is not safely passable. Contrary to Defendant's statement, there is no evidence Macavoy Way to its north connects with Trout Pond Road or that the Burnham's conveyance reserved a right-of-way to the north. Here, Plaintiffs have presented sufficient evidence that they have used the roadway across Defendant's property continuously, openly, and under claim of right, for well in excess of the statutory time period (see RPAPL 311). Accordingly, based on the foregoing, Plaintiffs have established a likelihood of success on the merits with respect to an easement appurtenant, an easement by implication and an easement by prescription.
Finally, inasmuch as Defendant's actions are alleged to have denied Plaintiffs safe access to their properties, Plaintiffs have demonstrated both a danger of irreparable injury and that the equities weigh in their favor. Indeed, Plaintiffs claim that since December 2015, Defendant has blocked and interfered with Plaintiffs' ingress and egress over the roadway leading to their properties, which deprives Plaintiffs of the use and enjoyment of their properties. While Plaintiffs demonstrated their potential irreparable injury, Defendant has not alleged that he would be harmed by maintenance of the status quo (see Clayton v. Whitton, 233 AD2d 828, 830 [3d Dept 1996] ). Accordingly, Plaintiffs are entitled to a preliminary injunction, and shall give an undertaking in the amount of $2,140.00—the cost of removing the boulders—prior to the preliminary injunction going into effect (see CPLR 6312 [b] ).
Accordingly, and it is
ORDERED that Plaintiffs' motion is granted and Defendant is enjoined and restrained from blocking or preventing Plaintiffs from accessing that portion of Macavoy Way located on Defendant's premises; and it is further
ORDERED that Plaintiffs shall give an undertaking in the amount of $2,140.00—the cost of removing the boulders—prior to the preliminary injunction going into effect; and it is further
ORDERED that, within 15 days of service of notice of the posting of the undertaking, Defendant is directed to remove any obstacles from and reopen that portion of the roadway known as Macavoy Way located on Defendant's premises during the pendency of these proceedings.
This constitutes the Decision and Order of the Court. The original Decision and Order is being returned to counsel for Plaintiffs. A copy of the Decision and Order and the supporting papers have been delivered to the County Clerk for placement in the file. The signing of this Decision and Order and delivery of a copy of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.
IT IS SO ORDERED.
Glen T. Bruening, J.
Response sent, thank you
Docket No: CV16–0129
Decided: July 19, 2016
Court: Supreme Court, New York,
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