Kusmierz v. Baan

• Decision Date: 10 November 1988
• Citation: 144 A.D.2d 829,534 N.Y.S.2d 786
• Parties: Hilmar KUSMIERZ, et al., Respondents, v. Robert BAAN, Appellant, and Wallace H. Mahan, Jr., et al., Intervenors-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 786

534 N.Y.S.2d 786

144 A.D.2d 829

Hilmar KUSMIERZ, et al., Respondents, v. Robert BAAN, Appellant, and Wallace H. Mahan, Jr., et al., Intervenors-Appellants.

Supreme Court, Appellate Division,

Third Department.

Nov. 10, 1988.

Wallace Mahan, III, Malboro, for appellants.

McGuirk, Levinson, Zeccola, Seaman, Reineke & Ornstein (David Levinson, of counsel), Central Valley, for respondents.

Before WEISS, J.P., and MIKOLL, YESAWICH, LEVINE and HARVEY, JJ.

MIKOLL, Justice.

Appeal from an order of the Supreme Court (Connor, J.), entered October 23, 1987 in Ulster County, which denied a motion by defendant and intervenors for summary judgment dismissing the complaint.

Plaintiffs own and reside upon property contiguous to the property owned by intervenors Wallace H. Mahan, Jr., and Mary Lou Mahan, which they lease to defendant, Robert Baan. Between plaintiffs' and the Mahans' property is a 50-foot right-of-way owned by intervenor Frank Troncillito upon which there runs a drainage pipe.

Plaintiffs commenced this action against Baan claiming, inter alia, that he intentionally damaged the drainage pipe, causing water to enter upon and damage plaintiff's property for which they sought monetary damages and injunctive relief. In his verified answer, Baan denied substantially all of plaintiffs' allegations and set forth counterclaims based upon plaintiff Hilmar Kusmierz's alleged entrance upon the leased premises to remove dirt and soil blocking the drainage pipe, which allegedly caused water to collect upon and damage the leased premises. A similar answer with counterclaims was served on behalf of the Mahans and Troncillito. Plaintiffs, in a reply, denied substantially all of the allegations of the counterclaims and asserted an additional claim against Troncillito based on his alleged dumping of dirt in front of plaintiffs' driveway, which Troncillito denied.

Baan, the Mahans and Troncillito (hereinafter collectively referred to as defendants) then moved for summary judgment dismissing the claims against Baan and Troncillito and granting their counterclaims against Hilmar Kusmierz. Supreme Court ruled that the motion papers raised material questions of fact and denied the motion. This appeal by defendants followed.

Review of plaintiffs' papers reveals that they rest their right to recovery upon two legal theories: (1) they acquired a prescriptive right to use of the drainage pipe because the pipe was allegedly installed by Troncillito and remained in existence for over 30 years, and (2) since Baan acted in bad faith in destroying the pipe, his diversion of the surface waters onto their property was wrongful. It is not clear whether plaintiffs base their prescriptive easement claim upon such an easement or on an easement by implication. However, under either theory, issues of fact exist which preclude the granting of summary judgment.

A prescriptive easement "arises by the adverse, open, notorious and continuous use of another's land for the prescriptive period" (Susquehanna Realty Corp. v. Barth, 108 A.D.2d 909, 485 N.Y.S.2d 795; see, Borruso v. Morreale, 129 A.D.2d 604, 514 N.Y.S.2d 99). Once it has been shown that the use is open, notorious, uninterrupted and undisputed, a presumption arises that it is adverse and under claim of right and the burden is on the owner of the servient tenement to show that the use was by license (see, Borruso v. Morreale, supra, at 605, 514 N.Y.S.2d 99; Miller v. Bettucci, 89 A.D.2d 706, 453 N.Y.S.2d 828). There is nothing in the record which sheds light on the circumstances leading to the initial construction of the drainage pipe. It is even unclear whether the pipe was actually installed by the Mahans or by Troncillito. Therefore, there is insufficient evidence to determine the true nature of plaintiffs' use.

Three elements must be established to find an easement by implication:

* * * (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 to the beneficial enjoyment of the land retained (Abbott v. Herring, 97 AD2d 870 , affd 62 NY2d 1028 [479 N.Y.S.2d 498, 468 N.E.2d 680] ).

Here, plaintiffs and Troncillito appear to satisfy the first element. However, there is no proof relating to the use of the drainage pipe prior to the transfer of title to them or to its necessity...