Posted by: Patricia Salkin | April 10, 2017

Third Department of New York Finds Town’s Widening of a Road By Three Rods was a Permissible Use of its Easement

Plaintiffs installed a privacy fence near the edge of the paved portion of Fox Hollow Road, which ran along the front of their property in the Town of Shandaken, Ulster County. For two years in a row, a snow plow operated by defendant Town of Shandaken allegedly damaged part of their fence, and plaintiffs commenced this action as a result. Plaintiffs asserted two causes of action, each alleging trespass and negligence related to the damage to the fence, and a third cause of action alleging that the Town widened Fox Hollow Road in 2010, taking their property without compensation and, in the process, altering the drainage that caused run-off from the road to contaminate their well. This case was an appeal from an order of the Supreme Court in Ulster County, which granted defendants’ motion for summary judgment dismissing the complaint. On appeal, Plaintiffs argued that the Town’s easement as limited to the width of the paved portion of Fox Hollow Road prior to the 2010 expansion because that is the only portion of the road that had been used by the Town for the statutory period of 10 years. However, the court noted that pursuant to Highway Law § 189, once a roadway is established as a highway by use, a town is permitted to maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Here, it was undisputed that plaintiffs’ fence and the widening of the roadway were within the three-rod width that defendants were statutorily authorized to open. Given that the Town was engaging in permissible uses of its easement, the court found no error in Supreme Court’s dismissal of the second cause of action.

On the third cause of action, the court held that the Supreme Court erred in granting defendants’ motion for summary judgment to the extent that it alleged a de facto taking based upon the contamination of plaintiffs’ well.  The court found that the record established that defendants proffered no proof and, accordingly, did not meet their initial burden concerning this claim.
Hoffman v. Town of Shandaken, 147 A.D.3d 1275 (3 Dept.2017)

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