In 1997 the Town of Long Lake, NY repaved a road, and seven years later, plaintiffs, who own a house adjacent to the street, sued the Town for trespass, nuisance and negligence alleging that the repaving encroached on their property by 5 to 10 feet, causing an increased volume of surface water to be discharged onto their property. According to plaintiffs, the runoff is eroding their property and compromising the structural integrity of their home.
The Appellate Division, Third Department noted that an action cannot be both a trespass and a taking at the same time. Relying on Sassone v Town of Queensbury, 157 AD2d 891, 893 [1990] the court found that, since the town permanently interfered with plaintiff’s physical use, possession and enjoyment of that portion of the property which was paved and made part of the public thoroughfare, a de facto taking had occurred. The plaintiff’s claims were dismissed on statute of limitations grounds.
Smith v. Town of Long Lake, 40 A.D.3d 1381, 837 N.Y.S.2d 391 (3rd Dept. 2007).
The opinion is available at: http://www.nycourts.gov/reporter/3dseries/2007/2007_04555.htm
This case is also discussed on the New York Legal Update Blog at: http://tswartz1.typepad.com/new_york_legal_update/2007/05/towns_repavemen.html
