| State of New York v Johnson |
| 2007 NY Slip Op 08336 [45 AD3d 1016] |
| November 8, 2007 |
| Appellate Division, Third Department |
| State of New York, Respondent, v William J. Johnson,Appellant. |
—[*1] Andrew M. Cuomo, Attorney General, Albany (Michael S. Buskus of counsel), forrespondent.
Peters, J. Appeal from a judgment of the Supreme Court (McCarthy, J.), entered April 28,2006 in Ulster County, upon a decision of the court in favor of plaintiff.
The former plaintiff in this action, the Awosting Reserve,[FN1] was founded by John Bradley in the late 1950s as a nonprofit organization for the purpose ofpreserving the natural wilderness of the Shawangunk Mountains. In 1994, Ridge Lake Partners,of which Bradley was a member, acquired property that later became Tillson Lake. In 1995,Ridge Lake was granted permission by the Department of Environmental Conservation to repaira dam on its newly acquired property and, among other things, fill a portion of the property thathad formerly been a lake. Thereafter, Ridge Lake undertook a massive effort to clear, refill, andsafeguard the newly-formed Tillson Lake. In 1995, a metal fence was erected around the lake,with chains and locks on its several [*2]gates, and a posting of avariety of "no trespassing" and "private property" signs every hundred feet. The AwostingReserve obtained title to the lake, as well as other adjoining lands, by deed dated March 27,2002. It also owns Lake Avenue, which is the only access road to the lake.
By deed dated July 8, 1994, defendant obtained title to a parcel of land which is separatedfrom the lake by a strip of land approximately 10 feet wide and 60 feet long. Defendant contendsthat since the time of his purchase, he has consistently used, mowed and cleared such strip inorder to access Tillson Lake for his boating and bathing activities.
Beginning in 1998, Bradley alleged that upon at least six occasions, he observed defendanttrespass on property owned by the Awosting Reserve during Bradley's regular inspections of theproperty. The trespass took the form of cutting timber, mowing the grass and using the lake, evenafter being told, on each such occasion, that he was to vacate the area since he was on privateproperty. Bradley testified that, from 1998 through the present, the lock on the gate nearest todefendant's property was frequently broken and replaced by a lock similar in appearance. In2002, Bradley instructed defendant, by letter, to remove any items of personal property, includinga dock he built, from Tillson Lake. Testimony further revealed that in 2004, defendant stackedfirewood, parked his vehicle, planted grass seed and erected a wooden fence across a portion ofCherry Street, a private road owned by the Awosting Reserve, all without permission. In 2004,the Awosting Reserve also sent defendant a letter instructing him to remove all of his personalproperty from Tillson Lake. When none of these was successful, this action was commenced in2005 alleging, among other things, a trespass by defendant and seeking a permanent injunctionbarring him from entering its property or using Tillson Lake. Defendant counterclaimed,asserting, among other things, easements by prescription and adverse possession. At theconclusion of a trial, Supreme Court awarded judgment to plaintiff. Defendant appeals.
"To create an easement by express grant there must be a writing containing plain and directlanguage evincing the grantor's intent to create a right in the nature of an easement rather than arevocable license" (Willow Tex v Dimacopoulos, 68 NY2d 963, 965 [1986] [citationomitted]; see Spencer v Connolly,25 AD3d 832, 834 [2006]). Such writing must unequivocally establish that the grantor'sintent was "to give for all time to come a use of the servient estate to the dominant estate"(Willow Tex v Dimacopoulos, 68 NY2d at 965). Additionally, if there is an ambiguitywith regard to the permanency of the restriction placed on the servient estate, it is to be treated asa license or an easement in gross which is revocable at will by the grantor (see id.; Webster v Ragona, 7 AD3d 850,854 [2004]).
Incorporated by reference in defendant's deed are the restrictions and covenants contained inthe deed from common grantors Hassie Tillson and Carolyn Tillson to J. Milton Quackenbushand Helen Quackenbush. It purportedly states[FN2] that "the above described premises are sold and conveyed and accepted upon and under thefollowing restrictions and covenants on [*3]the part of the partiesof the second part [Quackenbush] their heirs and assigns forever." The sixth enumeratedrestriction allegedly states that "[n]o water rights in and to Tillson Lake or the inlet thereto or theoutlet therefrom is granted except that the grantee named in this particular instrument and his orher family and the guests of his or her family are hereby permitted to use and enjoy the waters ofTillson Lake for fishing, boating and bathing." The language of the grant further permits thegrantee "to use and enjoy the waters of Tillson Lake . . . subject to the rules,by-laws and regulations of the Tillson Lake Property Owners Association, which. . . may be changed, altered or amended at any time." In our view, these provisionsreserved a right-of-way to the original grantee personally, thereby creating a license or easementin gross (see Stasack v Dooley, 292 AD2d 698, 699 [2002]; Simmons vAbbondandolo, 184 AD2d 878, 879 [1992]; compare Willow Tex v Dimacopoulos,68 NY2d at 965; Henry v Malen, 263 AD2d 698, 703 [1999]), which did not extend todefendant (see Spencer v Connolly, 25 AD3d at 834). While defendant contends that thelast portion of the Tillson to Quackenbush deed, which states that "the above restrictions,agreements and covenants shall run with the land," created an easement entitling him to the useof Tillson Lake, we disagree. The license allowing the specific grantee to use Tillson Lake forboating, bathing and fishing was merely a temporary exception to the enjoining restriction whichwas intended to run with the land.
As to the issue of trespass, it was plaintiff's burden to prove, by a preponderance of theevidence, that defendant made an intentional entry upon its property and that such entry wasunauthorized (see Phillips v Sun Oil Co., 307 NY 328, 331 [1954]; Trustco BankN.Y. v S/N Precision Enters., 234 AD2d 665, 667 [1996]). Liability may attach regardless ofdefendant's mistaken belief that he or she had a right to enter (see Golonka v Plaza atLatham, 270 AD2d 667, 669 [2000]). Here, extensive record evidence establisheddefendant's trespass both on the Cherry Street property, as well as Tillson Lake. Finding theseacts to establish plaintiff's prima facie burden of a trespass (see id.; Trustco BankN.Y. v S/N Precision Enters., 234 AD2d at 667), defendant had to show that he had either alawful right to enter these properties or had the owner's permission. Having wholly failed to meetsuch burden, we again find no error.
Nor do we find error in Supreme Court's finding that defendant failed to prove hisentitlement to a prescriptive easement on the 10 foot by 60 foot strip of land connecting hisproperty to Tillson Lake. To establish a prescriptive easement, defendant had to show that his useof the strip was adverse, open, notorious, continuous and uninterrupted for the 10-yearprescriptive period (see Bouton vWilliams, 42 AD3d 795, 795 [2007]; Goldstein v Jones, 32 AD3d 577, 581 [2006], lv dismissed8 NY3d 939 [2007]; Cole v Rothe,18 AD3d 1058, 1059 [2005]). Although defendant contends that he was engaged in aconstant use of this strip to access Tillson Lake since his purchase of the property, plaintiff'spredecessors' erection of a metal fence, equipped with locked and chained gates, stopped therunning of the prescriptive period (see Bouton v Williams, 42 AD3d at 796; comparePosnick v Herd, 241 AD2d 783, 785 [1997]). With evidence further establishing thefrequency with which plaintiff's predecessors had to restore the locks and chains throughout the10-year period, we find plaintiff to have unequivocally established that the requisite continuityelement was destroyed (see Bouton v Williams, 42 AD3d at 795-796).
Finally, as overwhelming evidence established defendant's trespasses, we conclude, [*4]despite the nominal damages awarded, that the issuance of apermanent injunction was proper. As the Court of Appeals guides, "where the injury ispermanent in character, and the damages resulting therefrom continuous in their nature, andespecially where, from the nature of the act and the injury suffered, it is impossible, or difficult,to ascertain and determine the extent of the injury which may flow from a continuance of thewrong, an injunction is the proper remedy" (Poughkeepsie Gas Co. v Citizens' Gas Co.,89 NY 493, 497 [1882]).
Cardona, P.J., Mercure, Spain and Carpinello, JJ., concur. Ordered that the judgment isaffirmed, without costs.
Footnote 1: On July 27, 2007, this Courtgranted plaintiff's motion to substitute itself for the Awosting Reserve as plaintiff on this appeal.
Footnote 2: The Tillson to Quackenbushdeed is not contained in the record. However, it appears uncontested that the quoted language isthe language from such deed.