Bond v Turner
Annotate this CaseDecided on May 5, 2009
Supreme Court, Chautauqua County
Geoffrey Bond and Sally T. Bootey, Plaintiffs,
against
Thomas A. Turner, Michelle M. Turner and Village of Lakewood, Defendants.
K1-2008-889
Paul V. Webb, Jr., Esq.
Attorney for Geoffrey Bond and Sally T. Bootey
Erickson, Webb, Scolton & Hajdu
414 East Fairmount Avenue
Post Office Box 414
Lakewood, New York 14750
Brian D. Gwitt, Esq.
Attorney for Thomas A. Turner and Michelle M. Turner
Damon & Morey LLP
1000 Cathedral Place
298 Main Street
Buffalo, New York 14202-4096
Andrew W. Goodell, Esq.
Attorney for Village of Lakewood
Goodell & Goodell
617 Washington Street
Jamestown, New York 14701
Timothy J. Walker, J.
This is a determination regarding the rights of adjoining land owners to access the right of way designated as "Lake Street" or "East Lake Street" in the Village of Lakewood, New York. Plaintiffs ("Bond" and "Bootey", respectively) seek a declaration that they have a private [*2]easement through their deeds, as well as a private right of action to enforce their respective rights to access Lake Street. Plaintiffs also seek an injunction to prohibit Defendants ("Turners") from blocking or impeding their access to Lake Street by constructing a building, retaining wall or otherwise impeding their access to the roadway. Plaintiffs further seek an order and determination precluding Defendant, Village of Lakewood (the "Village") from issuing a building permit for the construction of any building in the right of way known as Lake Street. After the commencement of this action, and with a building permit in hand, Turners constructed a storage shed, retention wall, and gravel parking area (which the Court observed on a site visit last fall), immediately adjacent to the paved area known as "Lake Street" (the "Improvements").
The Court is fully familiar with the facts of this case, and in rendering this decision has considered all the prior pleadings and proceedings had herein, including Plaintiffs' and Turners' respective proposed findings of fact and conclusions of law.
At its fundamental core, the legal dispute boils down to this: Whether the right of way
known as "Lake Street" is 50 feet, or less in width. There is no dispute that the length of the
disputed right of way extends from the center line of Pennsylvania Avenue, to the easterly border
of Bond's property (literally ending at the mouth of his driveway) (see below).
While at times the parties refer to Lake Street as a "public street", "public road", or "public right of way", the chains of title affecting the parties' respective rights make it clear that whatever its dimensions, Turners own, and pay taxes levied against the entire width of their premises - - including the disputed portion designated as "Lake Street". At issue is the extent of plaintiffs' (and the public's) rights to Lake Street.
At the time of the first action concerning Lake Street namely, Turner v. Anderson, 50 A.D.3rd 1562 (4th Dep't 2008) ("Turner I"), the Appellate Division cited (and relied upon) language in Village Resolution 101-2006-2007, which stated that the portion of Lake Street crossing Turners' property "shall be considered an easement to 20 East Lake Street" [Emphasis added].It is undisputed that Bond owns 20 East Lake Street. Nevertheless, Turners' property remains subject to "the rights of the public in and to the right of way known as Lake Street", as specified in their deed, and by way of a related 1983 proceeding entitled, Curtin v. Village of Lakeview, Index No. F13874. Neither the location, nor length of Lake Street on Turners' property can be clearly discerned from the language employed. Thus, it is appropriate to look to extrinsic evidence [see Eliopoulous v. Lake George Land Conservancy, Inc., 50 AD3d 1231, 1232 (2008)].
The record is replete with conflicting extrinsic evidence: the existence, width and location of Lake Street are shown (in various manners) on a filed subdivision map, recorded deeds dating back more than 100 years, aerial photographs, numerous official tax maps, U.S.G.S. Topographical Maps, multiple surveys, and various street maps. However, the fact remains that no portion of Lake Street has been utilized by the public, except for the paved portion thereof, since 1945. Indeed, it is also clear from the record that the width of the right of way known as Lake Street has not extended beyond 15-20 feet — the paved portion of the right of way. Times change, and so do uses. [*3]
Prior to the execution of the deed to Turners, the Village abandoned Lake Street from Bond's easterly line, westward. Thus, all that remained of Lake Street from the intersection of Pennsylvania Avenue was an 80-foot section that serviced (and continues to service) Bond's property. As is evidenced in various documents forming part of the record in this case, Lake Street "ends" at the beginning of Bond's driveway.
In short, the right of way at issue has been more narrowly defined (by use) over the last 6-8 decades. Rather than service a grand country club (as it did in the 1920's), it now services but a single piece of real estate. Even Bootey's late husband recognized (in 1965) the limited scope (and width) of this right of way:
No part [of that part of Turners' property known as "Lake Street"] has been used as a right of way or has been improved for said use for upwards of the past 20 years, except for that portion thereof ... now used as a public street or roadway extending westerly from Pennsylvania Avenue to [Bond's Property] and having a width of approximately 20 feet more of less. (Affidavit of E. Robert Bootey, a copy of which was attached to the Affidavit of Brian Gwitt, sworn to on November 26, 2008, as Exhibit "N").
The Village Mayor testified that the Village maintained only that portion of Turners' property used as a roadway (namely, the 15-foot wide strip of pavement). [Gwitt Aff. at Exhibit F, pp. 27-29]
While the parties agree on little, they concede that a portion of the "right of way" has been consistently maintained and used as a paved surface, approximately 15-20 feet in width, extending from the center line of Pennsylvania Avenue to the easterly border of Bond's property, and more fully described in a 1994 survey (a copy of which is included in the record).
As a general rule, "where the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder." [Lewis v. Young, 92 NY2d 443,449 (1998)]
Thus, a landowner burdened by an express easement may "narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired." [Id.] This strikes a necessary balance between the landowner's right to use and enjoy the property (for which, in this case, Turners pay property taxes) and the easement holder's right of passage. A landowner may even relocate a right of way without the easement holder's consent. [Lewis, 92 NY2d, at 453; see also, Sawbrook v. Sierocki, 53 AD3d 817 (2008)]
Here, a right of way has been established (and maintained) by use, the width of which is limited to that actual usage, as set forth in the 1994 survey [see, Impastato v. Village of Catskill, 55 AD2d 714 (3rd Dept. 1976)]
Turners' construction of the Improvements does not interfere with this right of way
— as defined herein. The Village properly issued a valid building permit for the
improvements set forth therein.
This constitutes the Decision of the Court. Defendants Turner shall submit an
order, on notice, consistent with this Decision.
[*4]
Dated:May 5, 2009
Buffalo, New York
____________________________________
HON. TIMOTHY J. WALKER, J.C.C.
Acting Supreme Court Justice
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