Biles v. Whisher

• Decision Date: 12 April 2018
• Docket Number: 525007
• Citation: Biles v. Whisher, 160 A.D.3d 1159, 75 N.Y.S.3d 301 (N.Y. App. Div. 2018)
• Parties: Leonard BILES Jr. et al., Respondents, v. Randall WHISHER, Appellant.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1159

75 N.Y.S.3d 301

Leonard BILES Jr. et al., Respondents,

v.Randall WHISHER, Appellant.

525007

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: February 21, 2018

Decided and Entered: April 12, 2018

Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, Plattsburgh (Thomas M. Murnane of counsel), for appellant.

Russell, McCormick & Russell, Keeseville (Andrew J. Russell of counsel), for respondents.

Before: McCarthy, J.P., Lynch, Devine, Clark and Pritzker, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Bruening, J.), entered July 26, 2016 in Essex County, which, among other things, granted plaintiffs' motion for a preliminary injunction.

Plaintiffs are the owners of several seasonal camp properties located on the west side of Trout Pond in the Town of Chesterfield, Essex County. In December 2015, defendant, the owner of two parcels of land located to the south and southwest of plaintiffs' properties, prevented plaintiffs' access to a private dirt road, known as Macavoy Way, by placing several boulders in its path. Plaintiffs commenced this action pursuant to RPAPL article 15 to determine their right to use Macavoy Way and seeking, among other things, to enforce a written easement that allegedly reserved plaintiffs a right-of-way over Macavoy Way and, in the alternative, to continue such usage of Macavoy Way through a prescriptive easement. After defendant joined issue, plaintiffs moved for a preliminary injunction requiring defendant to remove the obstructions from Macavoy Way during the pendency of the action. Defendant opposed such relief. Supreme Court granted plaintiffs' motion and defendant appeals. We affirm.

A party seeking a preliminary injunction "must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of the equities in its favor" ( Rural Community Coalition, Inc. v Village of Bloomingburg, 118 A.D.3d 1092, 1095, 987 N.Y.S.2d 654 [2014] [internal quotation marks and citation omitted]; see CPLR 6301 ; STS Steel, Inc. v. Maxon Alco Holdings, LLC, 123 A.D.3d 1260, 1261, 999 N.Y.S.2d 215 [2014] ). "The decision to grant or deny a request for a preliminary injunction is committed to the sound discretion of the trial court, and our review is limited to whether Supreme Court has either exceeded or abused its discretion as a matter of law" ( Waldron v. Hoffman, 130 A.D.3d 1239, 1239, 13 N.Y.S.3d 684 [2015] [internal quotation marks, brackets and citations omitted] ).

Plaintiffs have demonstrated a probability of success in establishing an easement appurtenant, by implication and by prescription. "An easement appurtenant ... is created through a written conveyance, subscribed by the grantors, that burdens the servient estate for the benefit of the dominant estate" ( Stone v. Donlon, 156 A.D.3d 1308, 1309, 69 N.Y.S.3d 115 [2017] [citations omitted]; see Webster v. Ragona, 7 A.D.3d 850, 853, 776 N.Y.S.2d 347 [2004] ). Plaintiffs submitted deeds that demonstrate that the property titles were all once held by a common grantor, Rose Van L. Burnham, and, when she conveyed her property in 1958, she reserved the right for her successors—present-day plaintiffs—to cross the property, now owned by defendant.¹ Additionally, the language reflected in Burnham's deed established that the easement would burden defendant's current properties, as the servient estate, and benefit plaintiffs' present properties, as the dominant estate.²

To establish an implied easement, there must be "(1) unity and subsequent separation of title, (2) the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and (3) the use must be necessary for the beneficial enjoyment of the land" ( Freeman v. Walther, 110 A.D.3d 1312, 1315, 974 N.Y.S.2d 603 [2013] [internal quotation marks and citations omitted]; see Lew Beach Co. v. Carlson, 77 A.D.3d 1127, 1130, 910 N.Y.S.2d 565 [2010] ). The deeds submitted by plaintiffs demonstrate unity of ownership and a subsequent separation of title to plaintiffs. An affidavit of plaintiff Craig Stevens illustrates that the claimed easement over defendant's property has been used for at least 49 years by plaintiffs and their predecessors. Moreover, while the exact location of the easement is not described in Burnham's conveyance, the description encompasses defendant's current properties. Also, plaintiffs' and their predecessors' extensive use of the same location, for close to 50 years, demonstrates the location of the easement over defendant's properties and that such use of his property was meant to be permanent (see Green v. Mann, 237 A.D.2d 566, 567, 655 N.Y.S.2d 627 [1997] ). Furthermore, Stevens' affidavit establishes that...