Weir v Gibbs

[*1] Weir v Gibbs 2006 NY Slip Op 52662(U) [21 Misc 3d 1127(A)] Decided on September 7, 2006 Supreme Court, Essex County Dawson, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 7, 2006
Supreme Court, Essex County

David A. Weir, Jr., Candace King Weir and The Stables, LLC, Plaintiffs,

against

Peter E. Gibbs, Louis A. Gibbs, Jr., Carol D. Gibbs and Elizabeth Gibbs Frederickson, Defendants.



165-99



Couch White, LLP, Albany (Joel M. Howard III of counsel), for Plaintiffs.

Poklemba & Hobbs, LLC, Saratoga Springs (Gary C. Hobbs of counsel), for Defendants.

James P. Dawson, J.

This action was commenced in 1999 and was tried before the Court without a jury on May 30-31, 2006. The complaint alleges three separate causes of action all involving real property owned by the parties and located on or near the western shore of Lake Champlain in Westport, Essex County, New York. At the close of Plaintiffs' case, the second cause of action and the third cause of action were dismissed. The remaining cause of action, the first, alleges that Plaintiffs have a prescriptive easement over "Drive C" as it crosses Defendants' land. The easement is depicted on Plaintiffs' Exhibit 5 in evidence. Exhibit 5 is a 1980 survey map prepared for Defendant Louis Gibbs by surveyor Kenneth E. Kratz. This same Drive C is shown on a 1948 survey map in evidence as Plaintiffs' Exhibit 3. There are no claims and no proof that any of the roads depicted on the various maps received in evidence are public roads. However, it is reasonably clear that the system of roads has existed since 1940 (Defendants' Exhibit B). There was no proof as to who may have used these private roadways prior to the Plaintiffs taking possession in a series of three deeds beginning in 1978 and through 1987. However, there is a recital in the deed from Boisseau to Weir (Plaintiffs' Exhibit 12) which would support an inference that "certain private roads" are to be used in common. Nevertheless, there is no proof of any deeded easement or right of way across the Defendants' parcel in the record except that contained in Defendants' Exhibit A and that easement appears to have been extinguished. Furthermore, although Plaintiffs point out that the period of adverse use by Plaintiffs' predecessors may be tacked onto their period of adverse use, there is no proof of the use by predecessors. [*2]

The first parcel acquired by the Plaintiffs is a parcel of slightly more than two acres acquired from the estate of Florence A. VanAlstyne in 1978 (Plaintiffs' Exhibit 9). This parcel is shown on Plaintiffs' Exhibit Number 1 and it is well south of Defendants' land. In 1981 Plaintiff Candace King Weir acquired an approximately 20 acre parcel including land immediately to the north of Defendants and also on the west and south of Defendants (Plaintiffs' Exhibit 10). That parcel is shown on a map in evidence as Plaintiffs' Exhibit 2. Finally, Plaintiffs acquired a 2.4 acre parcel in 1989 which is further north of Defendants and north of the second parcel acquired by Plaintiffs (Plaintiffs' Exhibits 11 and 12). This parcel is shown on Plaintiffs' Exhibit 3 as the cross-hatched area.

Plaintiffs' Exhibit 3 was introduced through John A. Deming who has done extensive surveying for Plaintiffs and that map is color coded. According to the surveyor the green line on the exhibit represents the private road system which ends at the southerly bounds of Defendants. According to the surveyor, the blue line shows Drive C extended northerly through Defendants' lands, then northerly through the parcel acquired by Plaintiffs in 1981 to the parcel acquired by Plaintiffs in 1987. There is a shed on the parcel immediately to the north of the Defendants' property. Plaintiffs contend that they have used Drive C, as it extends across Defendants' land, to access the shed since on or about 1981. Plaintiff, Candace Weir, testified that there was no reason to access the shed prior to 1981 although she also testified that she crossed Defendants' land on Drive C shortly after the Plaintiffs first bought in this area in 1978. Plaintiff, Candace Weir, also testified that she and her family crossed Defendants' land to access a cove on the shore of Lake Champlain for swimming. Plaintiff, Candace Weir, also testified that on or about 1989 or 1990 that someone placed a telephone pole across Drive C at the north bounds of Defendants' property. Mrs. Weir and her daughter, Amelia, both testified that the telephone pole did not prevent Plaintiffs from using Drive C. Amelia Weir testified that the telephone pole was placed across Drive C in the mid-nineties. A fence was ultimately erected across Drive C. Candace Weir testified that this fence was erected in 1996 or 1997. Amelia Weir testified that she went through the fence to access Drive C north of the Defendants' property.

While there was some testimony regarding chains at certain points on Drive C it is reasonably clear that these were only used during the winter season. Chains were apparently employed by both Plaintiffs and Defendants. These properties are all seasonal and are unused in the winter. There was no testimony as to winter maintenance, nor for that matter as to summer maintenance.

Joan Barker testified that she is the daughter of Jack Hadley, the long-time Weir caretaker. She recalled crossing the Defendants' property on Drive C in the 1980's. She testified that there was no obstruction on Drive C in 1989 when her father was still working for Plaintiffs. After her father died in 1990 Mrs. Barker rented a cabin from the Plaintiffs and she did not remember any obstruction in 1991. Mrs. Barker produced a picture (Plaintiffs' Exhibit 18) showing a stairway to Lake Champlain that her father built before his death in 1990. Mrs. Barker remembers a pole being across Drive C at some point.

The proof from the Defendants was to the effect that they first placed a telephone pole across Drive C at their north bounds. Both Louis Gibbs and Rebecca Dixon testified that a split-rail fence was erected in 1985 or 1986. Louis Gibbs identified a photo of him, the fence, and a red 1986 Chevrolet Blazer. He testified that he believed the photo was taken right after he bought the Blazer. However, since the Blazer is viewed from behind it is unlikely the photo was to showcase the "new" [*3]car. Mr. Gibbs testified that he had a pole and a chain as well as the fence in place at one time. Peter Gibbs testified that the fence was up in 1990 and that the telephone pole was there at about the same time.

It is manifestly clear that Drive C was not blocked in 1985. In a letter from the Defendants' attorney to Plaintiffs, dated June 3, 1985 (Plaintiffs' Exhibit 16), the attorney says that the Defendants are not intending to erect any barrier to access by Plaintiffs and their guests. Defendants claimed no right at that time to block Plaintiffs' access. What is also manifestly clear is that Plaintiffs do not have a deeded easement across Defendants' lands. That is, the 1981 deeded easement from Bumstead to Plaintiffs (Plaintiffs' Exhibit 3) terminates at or very near Defendants' south bounds. A deed executed in 1948, apparently by the father of Defendant Louis Gibbs Jr., in favor of Garnett Boisseau (Defendants' Exhibit A) gives Boisseau the right to cross the Defendants' property on Drive C. Boisseau at the time owned the land ultimately conveyed to Plaintiffs in 1981 as well as other lands (Plaintiffs' Exhibit 10). One could conclude that no obstructions existed and that the Plaintiffs and Defendants were on reasonably good terms until the mid-nineties when Plaintiffs paid Peter Gibbs for professional services in 1995 (Plaintiffs' Exhibit 19). One could also conclude that after 1995, when Plaintiffs opposed Defendants' building plan for a garage (Plaintiffs' Exhibit 6) that relations may have soured. Dates referred to by the parties and witnesses are otherwise very speculative. It is on this slippery slope of facts that the Court must base its determination on the law.

To prevail on its first cause of action the Plaintiffs must prove that their use of Defendants' land was open, notorious, continuous, hostile and under claim of right for ten (10) years (see Allen v Mastrianni, 2 AD3d 1023, 1024 [2003]). Perhaps most troubling is Plaintiffs' failure to show the extent of their use of Drive C as it crosses the Defendants' property. The testimony regarding interfamilial visits is certainly inconclusive on the issue of hostility or adversity (see Weinberg v Shafler, 68 AD2d 944, 945 [1979], affd 50 NY2d 76 [1980]). On the other hand, the fact that Plaintiffs say they used Drive C as it crosses Defendants' land after the cautionary letter from Defendants' attorney in 1985 is, perhaps, some evidence of hostility or adversity. An easement by prescription can be acquired only where the period of use was continuous for a period of ten (10) years. Although Candace Weir testified that she walked Drive C in 1978, by her own testimony there was no reason to use it until 1981 when Plaintiffs acquired the land to the north of Defendants. Drive C would be the most direct route to that parcel from the Plaintiffs' residence. Since there is no proof that Plaintiffs' predecessor (Bumstead) used Drive C there is no tacking on of that predecessor's use. Bumstead's predecessor (Boisseau) had conceded that he needed a right of way to cross Defendants' land as has been seen. Thus, the earliest time at which Plaintiffs could have acquired an easement by prescription would be 1981. There is some proof from Louis Gibbs Jr. that as early as 1981 he instructed the Plaintiffs' caretaker not to cross his lot. Mrs. Barker, the caretaker's daughter, confirmed that dispute but not the date of that dispute. There is proof that the caretaker built an alternative route to Drive C at or about the same time he built a stairway to the shore of the lake which was shortly before he died in 1990.

Plaintiffs point to Plaintiffs' Exhibit 5, a map prepared for Louis Gibbs Jr. in 1980, which shows a right of way across the Defendants' property. However, the reference on the map is to the easement to Boisseau in 1948 mentioned hereinbefore. This evidence does not assist Plaintiffs' cause. Plaintiffs' case will turn on whether the Plaintiffs can prove that their use of the Defendants' premises was continuous for the requisite ten (10) years and that the Court can find that such proof is clear and [*4]convincing. Plaintiffs have demonstrated that others such as the caretaker and the surveyor have used the road. The record is devoid of any proof that the general public ever knew that they were crossing Defendants' land. There was no proof that either Plaintiff, Candace Weir, or her deceased husband even directed their caretaker or anyone else that they were to use Drive C or its extension to cross Defendants' property. The Court is left to speculate as to how frequent the use was even keeping in mind the seasonal nature of the use of the property (see Miller v Rau, 193 AD2d 868, 869-870 [1993]). Plaintiff Candace Weir testified as to her walking Drive C in 1978 and that her deceased husband drove over the telephone pole on one occasion. This does not constitute clear and convincing evidence of continuous use (see Battista v Pine Is. Park Assn., 28 AD2d 714, 715 [1967] [no testimony for use during two years of the ten (10) year period is fatal]).

The complaint is dismissed and it is So Ordered. The Defendants have not presented any proof to support their two counterclaims, and they are dismissed, and it is So Ordered.

The original of this Decision and Order is returned to Defendants' attorneys for filing and service with notice of entry.

Decided:September 7, 2006

_____________________________________________

James P. Dawson, JSC

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