| Lopez v Adams |
| 2010 NY Slip Op 00428 [69 AD3d 1162] |
| January 21, 2010 |
| Appellate Division, Third Department |
| Margarita Lopez et al., Respondents, v Robert Adams et al.,Appellants, et al., Defendants. |
—[*1] Victoria B. Campbell, P.C., Port Jervis (James M. Hendry of counsel), forrespondents.
Garry, J. Appeal from a judgment of the Supreme Court (Sackett, J.), entered November 21,2008 in Sullivan County, upon a decision of the court in favor of plaintiffs.
Plaintiffs commenced this action alleging that their adjoining parcels of land in the Town ofLumberland, Sullivan County were damaged by repairs carried out by defendants Robert Adamsand Brian Kilcommons (hereinafter collectively referred to as defendants) on an easement thatdefendants held across plaintiffs' properties. The subject easement is a private roadway that runsup a steep incline along the boundary line between plaintiffs' properties to access defendants'properties above, bordered by an embankment on property owned by plaintiffs Gene Bierhorstand Susan Bierhorst and a stream on property owned by plaintiff Margarita Lopez. In 2004,defendants decided to repair and improve the road, and undertook to do so. During roughly thefollowing two years, defendants engaged in some further efforts to improve the condition of theroadway and to address erosion control upon the surrounding property. In this same period, threesevere storms caused floods and damage to plaintiffs' properties.
Plaintiffs commenced this action alleging that defendants carried out the work negligentlyand caused damage to their properties, both by subjecting their properties to flood and erosiondamage and by directly damaging the Bierhorsts' cesspool and water supply. Defendants deniedthese claims, though admitting that, in the course of their work, they drove the bulldozer acrossthe Bierhorsts' property in the area of the cesspool and, also, that they had removed a concretedam from the stream on Kilcommons' property.[FN*]
Following an extensive bench trial, Supreme Court found that defendants were entitled tomaintain the roadway, but had done so improperly in several respects and were thus liable for theresulting damage to plaintiffs' properties. The court awarded damages to plaintiffs jointly for therepair of the roadway, embankment, and stream banks between the state highway at the road'ssouthern end and the northern boundaries of plaintiffs' properties. Individual damages wereawarded to Lopez for reconstruction and rehabilitation of the stream on her property,construction of a new retaining wall on the stream's west bank, and a new bridge, and to theBierhorsts for a new drilled water well and cesspool. Defendants appeal.
Initially, defendants argue that they cannot be held liable for the damage to plaintiffs'properties because their easements gave them the right to enter their land to maintain and repairthe road. Supreme Court correctly found that defendants' right to use the road for access includedthe right to carry out work as necessary to reasonably permit the passage of vehicles and, in sodoing, to "not only remove impediments but supply deficiencies in order to construct [or repair]a suitable road" (Missionary Socy. of Salesian Congregation v Evrotas, 256 NY 86, 90[1931]; see Bilello v Pacella, 223 AD2d 522 [1996]; Minogue v Kaufman, 124AD2d 791, 791-792 [1986]). However, defendants' rights to make lawful and reasonable use oftheir easements were limited to those actions "necessary to effectuate the express purpose of itseasement" (Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651, 652[2000]). Plaintiffs had corresponding rights "to have the natural condition of the terrainpreserved, as nearly as possible" (49 NY Jur 2d, Easements § 128) and "to insist that theeasement enjoyed shall remain substantially as it was at the time it accrued, regardless ofwhether benefit or damage will result from a proposed change" (Myers v Baker, 45 AppDiv 26, 29 [1899]). Defendants were not permitted to "materially increase the burden of theservient estate[s] or impose new and additional burdens on the servient estate[s]" (Solow vLiebman, 175 AD2d 120, 121 [1991]). Thus, the court properly found that it was required tostrike a balance between the parties' competing interests and to hold defendants liable toplaintiffs to the extent that their actions exceeded their rights under their easements (seeAlford v Niagara Mohawk Power Corp., 115 AD2d 924, 924-925 [1985], lv denied67 NY2d 607 [1986]).
The extent of an easement is determined by the language of the grant and, when necessary,by any circumstances that tend to show the parties' intent (see Raven Indus., Inc. v Irvine, 40 AD3d 1241, 1242 [2007]). In anappeal from a determination after a bench trial, " 'we independently review the weight of theevidence and may grant the judgment warranted by the record, while according due deference tothe trial judge's factual findings particularly where . . . they rest largely uponcredibility assessments' " (ChaseManhattan Bank v Douglas, 61 AD3d 1135, 1136 [2009], quoting Martin v Fitzpatrick, 19 AD3d954, 957 [2005]; accord Sherwoodv Brock, 65 AD3d 738, 738-739 [2009]).
Defendants argue that Supreme Court erred in holding them liable for damage caused bytheir failure to follow plans they had obtained and to install certain erosion-control measuresduring their work. They assert that their work in repairing the road was within their rights underthe easement and did not require them to reengineer or improve the road. The evidence stronglysupports the court's determination that defendants' work destroyed or removed land features thathad previously served as erosion controls with the result that rocks, gravel, and earth wererepeatedly washed off the roadway and into the adjacent stream. There was evidence that theseintrusions, in addition to rocks, gravel, and logs that defendants directly pushed into the streamduring their work, altered the terrain of the Lopez property and caused flooding on plaintiffs'properties. According due deference to Supreme Court's factual findings, we agree thatdefendants exceeded the scope of their easements and that they were obligated to prevent furtherharm to plaintiffs' properties by installing erosion-control measures at least as effective as thosethey had removed.
Defendants contend that given the three historical storm events, in which the Delaware Riverrepeatedly escaped its banks and flooded plaintiffs' land in some of the same areas damaged bydefendants' work, their actions cannot be said to be a proximate cause of plaintiffs' damages. Weagree with Supreme Court that defendants were not entitled to an "act of God" affirmativedefense because they did not show that the storms and river flooding were "the sole andimmediate cause[s] of the injury and that they were free from any contributory negligence"(Tel Oil Co. v City of Schenectady, 303 AD2d 868, 873 [2003] [internal quotation marksand citations omitted]). "[W]here there are several possible causes of injury, for one or more ofwhich the defendant is not responsible, the plaintiff cannot recover without proving that theinjury was sustained wholly or in part by a cause for which the defendant was responsible"(Brooks v New York State Thruway Auth., 73 AD2d 767, 768 [1979], affd 51NY2d 892 [1980]). The court was entitled to credit the extensive evidence presented byplaintiffs, including the testimony of their engineer, that defendants' actions caused damageindependent of the harm that would have otherwise been caused by the flooding of the river.
Defendants also object to Supreme Court's determination that their actions destroyed thewater supply to the Bierhorst residence, contending that plaintiffs introduced no direct evidencethat connects defendants' actions to such damage. Negligence may be proven by circumstantialevidence that a defendant's actions were the "more likely or more reasonable" cause of aplaintiff's injuries (New York Tel. Co. vHarrison & Burrowes Bridge Contrs., 3 AD3d 606, 608 [2004] [internal quotationmarks omitted]). Gene Bierhorst's testimony that the water supply abruptly stopped workingafter defendants bulldozed rocks and sediment into the stream provided a basis on which thecourt could reasonably find that defendants' actions were more likely to have damaged the watersupply than any other cause (see id. at 608-609). For the same reasons, the court'sconclusion that defendants' activities were the more likely cause of damage to the Bierhorstcesspool was sufficiently supported by circumstantial evidence, including the testimony ofseveral witnesses that defendants drove heavy equipment over or near the cesspool and partiallyexposed it during their excavations, and that the exposed cesspool was damaged and leaking, aswell as the testimony of plaintiffs' engineer as to various problems with the cesspool resultingfrom defendants' work.
Further, with regard to the Bierhorst water supply, defendants argue that the individualdamage award to the Bierhorsts for the cost of installing a well was erroneous because thesystem that previously supplied water to the residence consisted of water pipes rather than awell. We disagree. The proper measure of damages for permanent harm to real property is thelesser of the cost of restoration or the decline in market value (see Jenkins v Etlinger, 55NY2d 35, 39 [1982]). Plaintiffs established that defendants' actions disrupted the water supply tothe Bierhorst residence and that the appropriate means of restoring the supply was by installing awell. They provided evidence of the cost of such restoration. Defendants introduced no evidencein rebuttal to show that the water supply could be restored less expensively by installing waterpipes or that such an installation would be feasible or to show that a lesser sum than the amountclaimed by plaintiffs would sufficiently compensate them for the lost water supply (seeid.; Alford v Niagara Mohawk Power Corp., 115 AD2d at 925).
Supreme Court erred in finding defendants liable for damage to plaintiffs' propertiesresulting from the removal of the concrete dam that had previously been located on theKilcommons' property (see Lake Claire Homeowners Assn. v Rosenberg, 215 AD2d446, 447-448 [1995], lv dismissed 86 NY2d 838 [1995]). The record supports theconclusion that removal of the dam did not directly cause the damage at issue here; rather, itsremoval returned Kilcommons' land to its natural condition, providing no flood protectionagainst the storms that followed (see Bennett v Cupina, 253 NY 436, 439 [1930];Friedland v State of New York, 35 AD2d 755, 756 [1970]). Because defendants had noduty to maintain the dam for the benefit of plaintiffs, they are not legally liable for the removal(see Bird v Trust Co. of N.J., 234 AD2d 812, 814 [1996]; Lake Claire HomeownersAssn. v Rosenberg, 215 AD2d 446, 447-448 [1995]). However, although the court foundthat defendants' removal of the dam had worsened the harm to plaintiffs' properties, it notedexplicitly that it could not order defendants to replace the dam, and did not award any damagesspecifically linked to its removal. Defendants argue that the joint award to plaintiffs should bereduced because the joint damage award was based on an estimate of $150,000 for generalrestoration work provided by plaintiffs' engineer, which included $20,000 for repairs to the dam.We disagree, as the court specified that the joint award represented the cost of repairing theroadway, embankment, and stream banks on plaintiffs' properties, without mentioning the dam.
Defendants further argue that the joint award is duplicative of several of the individualawards to plaintiffs but, as previously noted, Supreme Court specifically indicated the itemscovered by the joint award. Further, the separate awards addressed the individually ownedproperty. No sound basis appears for a conclusion that any of the individual awards duplicate thejoint award.
Nonetheless, there are problems with the joint award. As noted above, the measure ofpermanent damage to real property is the lesser of the diminution in the property's value or thecost of restoration, and plaintiffs bore the burden to prove their damages by at least one of thesemeasures (see Jenkins v Etlinger, 55 NY2d at 39; McDermott v City of Albany,309 AD2d 1004, 1006 [2003], lv denied 1 NY3d 509 [2004]). Although plaintiffspresented extensive evidence demonstrating the damage to their properties and the estimated costof its repair, the testimony did not specifically address the items covered by the jointaward—that is, the repair of the embankment, roadway, and streambanks within theboundaries of plaintiffs' properties in a manner consistent with the plans obtained by defendants.Thus, the evidence does not support a determination that $150,000 is an accurate measure ofjoint damage. Given the lack of clarity in the record, the award for the damages specified bySupreme Court in this respect is insufficiently supported. "Where damages are shown to exist butproof as to amount is insufficient, remand for a new trial as to those damages is appropriate"(Manniello v Dea, 92 AD2d 426, 429 [1983] [citations omitted]; see Jerry B. WilsonRoofing & Painting v Jobco-E. R. Kelly Assoc., 128 AD2d 953, 955 [1987], lv deniedand dismissed 70 NY2d 828 [1987]). The matter must therefore be remitted for thisdetermination.
Finally, contrary to defendants' contention, plaintiffs need not be directed to spend anydamages awarded to them for the repair of the lower portion on actual repairs to the roadway. "Ina tort case, [c]ompensatory damages, whether general or special, serve to make good, so far as itis possible to do so in dollars and cents, the harm done by a wrongdoer" (Scalp & Blade vAdvest, Inc., 309 AD2d 219, 225 [2003] [internal quotation marks and citations omitted]).As the dominant owners, defendants are responsible for maintaining and repairing the roadwayand, in the absence of an agreement to do so, plaintiffs are not obligated to make repairs orcontribute to their cost (see Tagle v Jakob, 275 AD2d 573, 574 [2000], affd 97NY2d 165 [2001]). We therefore disagree that awarding money damages to plaintiffsrepresenting the value of proper repair of the roadway crossing their properties constitutes adouble recovery, whether or not they elect to make the repairs.
Mercure, J.P., Spain and Rose, JJ., concur; Kane, J., not taking part. Ordered that thejudgment is modified, on the law, without costs, by vacating the joint award to plaintiffs for therepair of the portion of the easement and bordering embankment and stream banks on theirproperties; matter remitted to the Supreme Court for a new trial on the issue of the amount ofjoint damages to be awarded to plaintiffs for those repairs; and, as so modified, affirmed.
Footnote *: Supreme Court found that thisdam had provided flood protection to plaintiffs' downstream properties by controlling andlimiting the stream's flow during periods of high water.