| Taverni v Broderick |
| 2013 NY Slip Op 07898 [111 AD3d 1197] |
| November 27, 2013 |
| Appellate Division, Third Department |
| Anthony F. Taverni et al.,Respondents-Appellants, v William D. Broderick et al.,Appellants-Respondents. |
—[*1] Cynthia Feathers, Glens Falls, for respondents-appellants.
Lahtinen, J. Cross appeals from an order of the Supreme Court (Krogmann, J.),entered June 22, 2012 in Warren County, upon a decision of the court partially in favorof plaintiffs.
The parties, owners of adjacent properties on Atateka Drive in the Town ofChestertown, Warren County, disagree about an express easement and assertedprescriptive easements affecting their properties. In 1985, plaintiffs purchased theirparcel, which is located generally south of defendants' parcel, and defendants haveresided since the early 1980s on their parcel, which has been in defendant William D.Broderick's family for several generations. The parties' predecessors-in-interest hadexecuted, in 1977, an agreement with reciprocal easements regarding aright-of-way[FN1]along an unpaved driveway that ran from Atateka Drive east about 295 feet to a singlestructure garage/shed.[FN2]The vast majority of the driveway easement was on the [*2]south side of defendants' parcel with a small, narrowportion located in the northwest corner of plaintiffs' parcel where the drivewayintersected Atateka Drive. The 1977 agreement stated that the reciprocal right-of-wayover the driveway was "for the purpose of ingress and egress only to and from thegarage-shed located in the rear of said premises" and provided that no one would "erectany structures on the said driveway which would obstruct the passage to and from thesaid garage-shed."
The longtime amicable relationship that the parties had enjoyed began to deterioratebetween 2004 and 2005 for a variety of reasons ostensibly related to plaintiffs' decisionto begin living at their property full time and construction they undertook thereon.Defendants placed a fence along their south border and plaintiffs then commenced thisaction alleging, among other things, interference with the driveway easement as well asrights from prescriptive easements. Defendants counterclaimed asserting, among otherthings, trespass by plaintiffs.
Following a nonjury trial, Supreme Court rendered a written decision finding thatplaintiffs had established a prescriptive easement in a walkway from the front of theirhouse to the driveway, a prescriptive easement to access the driveway over twowalkways in the back of the house, but had failed to prove a prescriptive easement topark on the driveway or in a rear parking area on defendants' property. The court furtherdirected defendants not to interfere with the prescriptive rights found in its decision orplaintiffs' right to access the shed over the driveway, found that plaintiffs have the rightto maintain the driveway easement in a reasonable condition, rejected plaintiffs' attemptto restrict defendants' use of the driveway, enjoined plaintiffs from entering defendants'property except for proper use of the driveway easement, and dismissed defendants'trespass claim against plaintiffs. Both parties appeal.
The findings of prescriptive easements must be reversed. As for the access to thedriveway from the front walkway, both parties acknowledge that there is no prescriptiveeasement since the front walkway and the area of the driveway accessed thereby areentirely in areas already owned by plaintiffs (see e.g. Will v Gates, 89 NY2d 778,784 [1997] ["a person cannot have an easement in his or her own land"]). With regard tothe alleged prescriptive easements in the rear walkways, one of the elements of aprescriptive easement is hostile use, which does not arise when the use is permissive, and"permission can be inferred where . . . the relationship between the partiesis one of neighborly cooperation and accommodation" (Allen v Mastrianni, 2 AD3d1023, 1024 [2003]; seeEstate of Becker v Murtagh, 19 NY3d 75, 82 [2012]; Ward v Murariu Bros., Inc.,100 AD3d 1084, 1085 [2012]; McKeag v Finley, 93 AD3d 925, 927 [2012]). Theoverwhelming and virtually uncontested proof established that until 2004, the parties, aswell as their predecessors-in-interest, had very amicable relationships. The record isreplete with examples of neighborly cooperation and accommodation involving, amongmany other things, various permitted expanded uses of the driveway easement. SupremeCourt found that defendants had established permissive use by plaintiffs regarding theasserted prescriptive parking easements and the record simply does not support a contraryview as to the other alleged prescriptive easements.
Plaintiffs urge that Supreme Court did not adequately set forth the specific injunctiverelief that it was granting regarding the driveway easement since it generally directedremoval of structures to the extent that they interfered with the driveway. Where, as here,"the extent of a [*3]right-of-way is not specified, it isconstrued to be that which is necessary for the use for which it was created" (Town ofUlster v Massa, 144 AD2d 726, 728 [1988], lv denied 75 NY2d 707 [1990]).There was evidence that the use of the driveway by plaintiffs' predecessors (whoexecuted the 1977 agreement), as well as plaintiffs thereafter, included towing a boat ona nearly 20-foot trailer behind a vehicle to and from the shed for storage purposes. Thepartial gate constructed by defendants with an opening of about eight feet and theeasterly most section of split rail fence near the garage/shed hinder this purpose and mustbe removed.
Plaintiffs further seek a declaration that the entire easement has a width of 12 feet.There was conflicting proof on this issue and Supreme Court made no credibilitydetermination with respect thereto. Plaintiff Anthony F. Taverni testified that thedriveway was 12 feet wide, Broderick testified that it was eight feet wide and the surveysin the record depict a width that does not appear uniform for the length of the easement.The record contains no rational ground upon which to resolve these conflictingcontentions, and there is insufficient proof as to the width that would be reasonablynecessary to drive a vehicle towing a 20-foot trailer between the road and shed. Undersuch circumstances, we decline to set a specific width, but reiterate that defendants maynot place any structure or hindrance that would prevent a reasonable driver from beingable to negotiate a vehicle pulling a trailer comparable to the vehicle and trailer use thathas historically been made of the driveway.
Defendants contend that Supreme Court erred in dismissing, upon the ground thattheir damages were de minimus, their trespass cause of action, and they seek an award ofnominal damages. The trespass having been established, but no damages proven, we findthat defendants should have been awarded one dollar (see generally Hodges vCusanno, 94 AD3d 1168, 1170 [2012]).
We find merit in plaintiffs' argument that their request to restrict defendants' use ofthe driveway easement should not have been totally dismissed. A small part of thedriveway easement near its intersection with Atateka Drive is on plaintiffs' property and,as to such section on plaintiffs' property, defendants' right is restricted to use consistentwith the express terms of the easement (identical to the restriction on plaintiffs' right tocross the part of the driveway located on defendants' property), i.e., "for the purpose ofingress and egress only to and from the garage-shed located in the rear of the saidpremises."
The remaining arguments are either academic or unavailing.
Rose, J.P., Stein and Garry, JJ., concur. Ordered that the order is modified, on thelaw and the facts, without costs, by reversing so much thereof as recognized in plaintiffsany prescriptive easements in defendants' property or their own property; defendants aredirected to remove the partial gate or gates constructed in the driveway easement and toremove the easterly most section of split rail fence near the garage/shed, defendants areawarded nominal damages of one dollar on their trespass cause of action, and it isdeclared that defendants' use of the portion of the driveway easement located onplaintiffs' property is restricted to the use set forth in the 1977 agreement; and, as somodified, affirmed.
Footnote 1: A right-of-way in thesame area had been initially created in a 1963 deed.
Footnote 2: The boundary betweenthe parcels intersected the structure, with the garage portion on defendants' land and theshed part on plaintiffs' land.