Allen v. Potter
| Decision Date | 16 December 1970 |
| Citation | 64 Misc.2d 938,316 N.Y.S.2d 790 |
| Parties | Grace I. ALLEN, Plaintiff, v. Walter E. POTTER, Defendant. |
| Court | New York Supreme Court |
The plaintiff brings an action for a permanent injunction and for damages and for punitive damages against the defendant for interference with the use by the plaintiff of a boat and boat hoist which she placed in Canandaigua Lake together with a catwalk on both sides of the boat hoist in the vicinity of a right-of-way plaintiff has over land owned by the defendant along the shore of Canandaigua Lake in order to reach the Lake located some distance from her property which is not along the shore of the Lake.
Prior to the instant dispute the defendant in the instant case had brought an action in State Supreme Court against the plaintiff in the instant case to enjoin an allegedly improper use of the same right-of-way. The facts were that the plaintiff in the instant case had installed a dock at the end of the right-of-way and had parked vehicles and equipment on the right-of-way. The Court granting the injunction ordered the dock removed pointing out that by the terms of the right-of-way contained in a Deed the purpose of the right-of-way is for 'ingress, egress and regress with the right at all times to the parties hereto, their heirs and assigns, and the occupants of the premises along said driveway to pass or repass on foot and with animals or vehicles over said right-of-way.' The Court in the prior case also held that the then defendant now plaintiff had no right to obstruct the right-of-way by storing boats, chairs or other equipment on the right-of-way. A permanent injunction was issued to prohibit such activities in the future.
The law as was stated in the prior case is that a clearly stated written agreement may not be varied by extrinsic evidence. Bethlehem Steel Company v. Turner Constr. Co., 2 N.Y.2d 456, 459--460, 161 N.Y.S.2d 90, 141 N.E.2d 590 (1957); Loch Sheldrake Associates v. Evans, 306 N.Y. 297, 304--305, 118 N.E.2d 444 (1954), Walter Potter v. Grace I. Allen and G. Ernest Oremus, Supreme Ct. Yates County, May 21, 1969. The decision in Potter v. Allen and Oremus, supra, citing various cases also pointed out that 'it is a general rule of construction that no more is granted than is necessary for the enjoyment of the easement itself.'
A question of fact was raised in the case at bar as to whether or not the boat hoist and catwalk around it was located in the water beyond the low water mark. Were is not located beyond the low water mark the plaintiff would be clearly in violation of the defendant's rights because it would then be located on land owned by him. Stewart v. Turney, 237 N.Y. 117, 142 N.E. 437. I find that the boat hoist and catwalk were located beyond the low water mark. Since the boat hoist and catwalk were located beyond the low water mark they must be located on land owned by the State of New York in trust for the people of the State of New York since Canandiagua Lake is a navigable body of water and title to the bed of the Lake is held by the State of New York in trust for the people of the State. See Granger v. Canandaigua, 257 N.Y. 126, 177 N.E. 394.
Accordingly, the Court must decide whether or not as a member of the public the plaintiff has the right to construct the boat hoist and catwalk located beyond the low water mark in Canandaigua Lake and if not as a member of the public would plaintiff have the rights enjoyed by a...
To continue reading
Request your trial
-
Romeo v. Sherry, 99-CV-7245 (NGG).
...offshore his property had "the incorporeal right to free ingress and egress to abutting navigable waters"); Allen v. Potter, 64 Misc.2d 938, 316 N.Y.S.2d 790 (N.Y.Sup.Ct.1970) (finding, in reference to riparian rights, that, "[g]enerally speaking such rights are: (1)[u]se of water for gener......
-
Cassidy v. State Dept. of Natural Resources
...construing the term "riparian owner" have equated it with legal title to the upland. 12 Specifically, in Allen v. Potter, 64 Misc.2d 938, 316 N.Y.S.2d 790, 793 (N.Y.Sup.Ct.,1970), aff'd, 37 A.D.2d 691, 323 N.Y.S.2d 409 (N.Y.App.Div.1971), the court held that the holder of a lake access ease......
-
Rogers v. South Slope Holding Corp.
...Warren's Weed on N.Y. Real Property, "Lands Under Water", § 1.02; Navigation Law § 2; 107 N.Y. Jur 2d, "Water" § 14; Allen v. Potter, 64 Misc.2d 938, 939, 316 N.Y.S.2d 790 (Yates Co., 1970) aff'd 37 A.D.2d 691, 323 N.Y.S.2d 409. A review of Plaintiffs' survey shows the boathouse has been er......
-
Brown v. Heidersbach
...defendant would be severely limited were the plaintiff to prevail. . . .' (Citations omitted). (Emphasis added). Allen v. Potter (1970), 64 Misc.2d 938, 316 N.Y.S.2d 790, 793. We conclude that by the express terms of the grants creating the easement no riparian rights were intended to be An......