| Barra v Norfolk S. Ry. Co. |
| 2010 NY Slip Op 06036 [75 AD3d 821] |
| July 8, 2010 |
| Appellate Division, Third Department |
| Nicholas J. Barra et al., Appellants, v Norfolk Southern RailwayCompany, Respondent. |
—[*1] Harris Beach, P.L.L.C., Ithaca (Russell E. Maines of counsel), for respondent.
Garry, J. Appeal from an order of the Supreme Court (Mulvey, J.), entered September 14,2009 in Tompkins County, which, among other things, granted defendant's motion for summaryjudgment dismissing the complaint.
Plaintiffs are owners of properties on the eastern shore of Cayuga Lake in the Town ofLansing, Tompkins County, in an area that is bounded to the west by the lake and to the east byrailroad tracks owned by defendant. For decades, three at-grade railroad crossings were locatedwithin an approximately 825-foot span of defendant's railroad tracks adjacent to the area, part ofwhich is known as Ladoga Park; however, in March 2008, defendant closed the middle crossing(hereinafter the Northern Crossing). Plaintiffs thereafter commenced this action asserting thatthey enjoyed an express easement for ingress and egress to their properties over the NorthernCrossing, that they acquired a prescriptive easement for ingress and egress over the NorthernCrossing, or that an easement by estoppel existed for their benefit at the site of the NorthernCrossing. Defendant answered and asserted a counterclaim for a declaration that plaintiffs lackan easement at the Northern Crossing. Thereafter, defendant moved for summary judgmentdismissing the complaint against it in its entirety. Plaintiffs opposed defendant's motion andcross-moved for summary judgment on their claim for a prescriptive easement. Supreme Courtgranted defendant's motion, denied plaintiffs' cross motion and dismissed the complaint in its[*2]entirety. Plaintiffs appeal.[FN1]
As always, "[t]he proponent of a summary judgment motion must make a prima facieshowing of entitlement to judgment as a matter of law" (Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]; accord Rought v Price Chopper Operating Co., Inc., 73 AD3d1414, 1414 [2010]) and "[o]ur function on a summary judgment motion is to view theevidence in the light most favorable to the party opposing the motion, giving that party thebenefit of every reasonable inference, and determine whether there is any triable issue of factoutstanding" (Boyce v Vazquez, 249 AD2d 724, 726 [1998]; see Barlow v Spaziani, 63 AD3d1225, 1226 [2009]; Boston v Dunham, 274 AD2d 708, 709 [2000]). We turn first toplaintiffs' claim that the easement was created by express grant in the deed conveying therailroad property from John Henry Myers—plaintiffs' predecessor in interest—tothe Cayuga Lake Railroad Company—defendant's predecessor in interest—in the1870s (hereinafter the Myers deed). The existence of an express easement "depends upon thelanguage of the instrument itself" (Wechsler v New York State Dept. of Envtl.Conservation, 193 AD2d 856, 858 [1993], lv denied 82 NY2d 656 [1993]), so webegin our analysis with the Myers deed. This deed requires that the purchaser "put in three farmcrossings over [its] track and one pass suitable for sheep under [its] track at some convenientpoint between the barn and the creek."[FN2]We agree with plaintiffs that the proper construction of this passage mandates placement of onlythe "pass suitable for sheep" at a "point between the barn and the creek," and does not limit theplacement of the three farm crossings to that location. This more natural reading gives meaningto each portion of the passage without creating any internal dissonance, while the alternativeconstruction advanced by defendant—that the three farm crossings and the pass suitablefor sheep were all to be placed at a "point between the barn and the creek"—createsundesirable internal inconsistencies, i.e., the placement of three farm crossings across the tracksand one sheep pass under the track all at a single "point"; we decline to apply such a forcedconstruction. Consequently, we find that Supreme Court erred in concluding that the language ofthe deed precluded the Northern Crossing from being one of the expressly granted easements.
Next, we address defendant's motion seeking dismissal of plaintiffs' claim that their use ofthe Northern Crossing had ripened into a prescriptive easement. To succeed on a prescriptiveeasement claim, a plaintiff must show that the use of the servient property was open, notorious,continuous and hostile for the prescriptive period; once the other elements of the claim areestablished, hostility is generally presumed, thus shifting the burden to the defendant todemonstrate that the use was permissive (see Barlow v Spaziani, 63 AD3d at 1226; Weir v Gibbs, 46 AD3d 1192,1193 [2007]; McNeill v Shutts, 258 AD2d 695, 696 [1999]).[FN3]In this [*3]regard, permission may be inferred where therelationship between the dominant and servient estates evinced "neighborly cooperation andaccommodation" (Allen vMastrianni, 2 AD3d 1023, 1024 [2003]; see Barlow v Spaziani, 63 AD3d at1227; Weir v Gibbs, 46 AD3d at 1193) and, "[w]here permission can be implied fromthe beginning, no adverse use may arise until the owner of the servient tenement is made awareof the assertion of a hostile right" (Susquehanna Realty Corp. v Barth, 108 AD2d 909,910 [1985]; see Sleasman v Williams, 187 AD2d 852, 853 [1992]; Jansen vSawling, 37 AD2d 635, 636 [1971]; Moore v Day, 199 App Div 76, 86 [1921],affd 235 NY 554 [1923]).
There is no genuine disagreement that plaintiffs' uses of the Northern Crossing were open,notorious and continuous for the prescriptive period; the dispute centers upon the question ofhostility. On its motion, defendant has attempted to disprove plaintiffs' hostile use of theeasement by demonstrating that the use was permissive. Defendant does not assert thatpermission was ever expressly granted; consequently, to succeed on its motion, defendant hadthe burden of establishing implied permission. Generally, the question of implied permission isone for the factfinder to resolve (seegenerally Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172,178-179 [2006]; Barlow v Spaziani, 63 AD3d at 1227) and, therefore, the vast majorityof appellate cases addressing this issue in the context of a prescriptive easement claim have doneso on appeals following trials (see e.g. Weir v Gibbs, 46 AD3d at 1193; Duckworth v Ning Fun Chiu, 33 AD3d583 [2006]; McNeill v Shutts, 258 AD2d at 695-696; Sleasman v Williams,187 AD2d at 852-853; Susquehanna Realty Corp. v Barth, 108 AD2d at 909-910;Hassinger v Kline, 91 AD2d 988 [1983]; Jansen v Sawling, 37 AD2d at 635).The rare case in which implied permission is established on summary judgment normallyinvolves irrefutable proof of "a history of cooperation and accommodation," such as anadmission of that fact by a party seeking the prescriptive easement (Allen v Mastrianni, 2AD3d at 1024), or a circumstance under which a prevailing presumption in favor of permissiveuse is invoked, such as where the parties are "related by blood or part of a select group offriends" (Wechsler v New York State Dept. of Envtl. Conservation, 193 AD2d at 860).Neither scenario is presented here.
In support of its motion, defendant relies on the apparent business relationships between itand its predecessors and certain prior owners of the parcel directly adjacent to the railroad trackat or near the site of the disputed crossing (presently owned by plaintiff William Burin andhereinafter referred to as the Burin parcel), as evidenced by the installation by defendant or itspredecessors in interest of a "siding" at the Burin parcel and the historic use of that parcel incoal, gravel and/or cement businesses. While this may adequately demonstrate that prior ownersof the Burin parcel made use of the railroad tracks for transportation of materials by rail, itreveals nothing about the use of the Northern Crossing for traversing the railroad tracks byautomobile. Additionally, affidavits from three long-time residents of the area variouslyasserting that, during a vaguely-defined period from approximately the 1940s to the 1960s, theyrecalled customers of the business or businesses operating on the Burin parcel using the NorthernCrossing, fail to sufficiently fill the gaps in defendant's proof to establish defendant's entitlementto summary judgment as a matter of law. Accordingly, we find that defendant failed to make thenecessary showing that permission could be " 'implied from the beginning' " (Sleasman vWilliams, 187 AD2d at 853, quoting Susquehanna Realty Corp. v Barth, 108 AD2dat 910) and, as reasonable [*4]inferences can be drawn inplaintiffs' favor from the evidence proffered by defendant (see Boyce v Vazquez, 249AD2d 724, 726 [1998], supra), summary judgment in defendant's favor on the issue ofthe prescriptive easement claims was inappropriate (see Barlow v Spaziani, 63 AD3d at1227).[FN4]
Finally, as this matter is being remitted for trial, we will address the issue of the applicationof the 2008 amendments to the RPAPL (see L 2008, ch 269) to plaintiffs' prescriptiveeasement claims.[FN5]These amendments, which took effect on July 7, 2008, "apply to claims filed on or after sucheffective date" (L 2008, ch 269, § 9) and, as alleged in plaintiffs' March 2009 complaint,plaintiffs' prescriptive periods all commenced and concluded prior to the effectivedate.[FN6]Although a creature of common law, the right to an easement by prescription, as with adversepossession, vests upon the expiration of the statute of limitations for the recovery of real property(see Scallon v Manhattan Ry. Co., 185 NY 359, 363 [1906]; see also CPLR 212[a]; RPAPL 501 [2], as amended by L 2008, ch 269, § 1). Should plaintiffs succeed inproving their claims, titles to the easement would have vested prior to the effective date of theamendments and, consequently, "[they] may not be disturbed retroactively by newly-enacted oramended legislation" (Franza vOlin, 73 AD3d 44, 47 [2010]; see Baker v Oakwood, 123 NY 16, 29-30[1890]). Accordingly, notwithstanding the statutory language to the contrary, at trial, plaintiffsare entitled to have their claims measured in accordance with the law of prescription as it existedprior to the enactment of the 2008 amendments.
Cardona, P.J., Rose, Stein and McCarthy, JJ., concur. Ordered that the order is modified, onthe law, without costs, by reversing so much thereof as granted that portion of defendant'smotion for summary judgment dismissing the first and second causes of action; motion denied tothat extent; and, as so modified, affirmed.[*5]
Footnote 1: As plaintiffs failed to raise anyargument with respect to their easement by estoppel claim, we find any issues with respectthereto to be abandoned (see Deshieldsv Carey, 69 AD3d 1191, 1192 n 1 [2010]).
Footnote 2: Defendant has acceptedplaintiffs' typed transcription of the handwritten deed.
Footnote 3: To establish a prescriptiveeasement at trial, a plaintiff must prove these elements by clear and convincing evidence (seeMcNeill v Shutts, 258 AD2d at 696). However, as this appeal arises from a motion forsummary judgment, the ultimate burden of proof after trial plays no part in the assessment ofwhether there are relevant factual issues presented.
Footnote 4: In light of our conclusion, weexpress no opinion as to whether a mutually beneficial business relationship can be viewed as"neighborly cooperation or accommodation" so as to support a conclusion of implied permission.
Footnote 5: It is well settled that statutorychanges affecting the law of adverse possession concomitantly alter the common-law doctrine ofprescriptive easement because of "the strong analogy between the two rules" (Klin Co. vNew York R.T. Corp., 271 NY 376, 380 [1936]).
Footnote 6: Defendant had barricaded thecrossing prior to the effective date of the amendments.