Gardner v. Suddaby
| Decision Date | 14 June 1979 |
| Citation | 70 A.D.2d 990,417 N.Y.S.2d 803 |
| Parties | James E. GARDNER et al., Respondents, v. Peggy A. SUDDABY et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
The Clements Firm, Canton (Mahlon T. Clements, Canton, of counsel), for appellants.
Edward A. La Varnway, Massena (Lawrence X. Dalton, Massena, of counsel), for respondents.
Before GREENBLOTT, J. P., and KANE, STALEY, MAIN and MIKOLL, JJ.
MEMORANDUM DECISION.Appeal from a judgment of the Supreme Court in favor of plaintiffs, entered June 6, 1978 in St. Lawrence County, upon a decision of the court at a Trial Term, without a jury.
Plaintiffs and their predecessors in title gained vehicular access to their Cranberry Lake property in St. Lawrence County by means of a dirt road which traversed the lands of others before terminating on their premises. Such use continued even after a paved Town highway was constructed in 1954 which bordered their parcel. However, passage was interrupted in 1976 when the defendant Peggy A. Suddaby caused ditches to be dug across portions of the dirt road which passed over her nearby premises and plaintiffs thereupon commenced the present action for an injunction and a declaration of their rights. After hearing the proofs without a jury, the trial court determined that the road in question was a public highway and awarded relief to plaintiffs. Our view of the record on this appeal by Mrs. Suddaby persuades us that the dirt road was not adequately shown to have become a public way by user, but we conclude, nevertheless, that the facts adduced by plaintiffs did establish their entitlement to a prescriptive easement.
Characterization of the subject road as being an old Town road was not grounded on evidence that it had been laid out or dedicated for highway purposes, but rested instead on indications of its long usage by adjoining property owners and members of the general public (see Highway Law, § 189). Mere public use, however, is not enough, for it must also be demonstrated that the roadway was kept in repair or taken in charge by public authorities (Diamond Int. Corp. v. Little Kildare, 22 N.Y.2d 819, 292 N.Y.S.2d 915, 239 N.E.2d 655). In this case the only testimony in that regard was to the effect that Town vehicles were observed on the road sometime prior to 1945. No definite explanation for their presence was given and it would be purely speculative to assume that such vague incidents represented acts of dominion by a municipality. Accordingly, we hold that the record does not support the trial court's...
To continue reading
Request your trial
-
E. Side Highway Dist. v. Delavan
...statute to Idaho's, implied that there is a hostility requirement for the creation of public roads. Gardner v. Suddaby , 70 A.D.2d 990, 417 N.Y.S.2d 803, 805 (N.Y. App. Div. 1979) ; see also 39A C.J.S. Highways § 20. However, it is not within this Court's powers to read something into a sta......
-
Jemzura v. Mussision
...819, 821, 292 N.Y.S.2d 915, 239 N.E.2d 655; Matter of Hillelson v. Grover, 105 A.D.2d 484, 485, 480 N.Y.S.2d 779; Gardner v. Suddaby, 70 A.D.2d 990, 417 N.Y.S.2d 803, appeal dismissed 48 N.Y.2d 706, 422 N.Y.S.2d 68, 397 N.E.2d 758, lv. denied 49 N.Y.2d 702, 426 N.Y.S.2d 1026, 403 N.E.2d 188......
-
Duke v. Town of Riverhead
...Homes, Inc. v. Frey, 217 App.Div. 164, 169-170, 216 N.Y.S. 351), or by prescription ( see Highway Law § 189; Gardner v. Suddaby, 70 A.D.2d 990, 990-991, 417 N.Y.S.2d 803; Nogard v. Strand, 38 A.D.2d 871, 329 N.Y.S.2d 25). Any error the Supreme Court may have committed in refusing to admit i......
-
Stuart v. Town of Wells
...by public authorities (see, Diamond Intl. Corp. v. Little Kildare, 22 N.Y.2d 819, 292 N.Y.S.2d 915, 239 N.E.2d 655; Gardner v. Suddaby, 70 A.D.2d 990, 417 N.Y.S.2d 803, appeal dismissed 48 N.Y.2d 706, 422 N.Y.S.2d 68, 397 N.E.2d 758). Defendant tendered evidentiary proof in admissible form ......