Nogard v. Strand
| Decision Date | 24 February 1972 |
| Citation | 329 N.Y.S.2d 25,38 A.D.2d 871 |
| Parties | Axel J. NOGARD, Appellant, v. Curt R. STRAND et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Joseph E. Rosch, Ballston Spa, for appellant.
Lawton, Morse & Updike, Cambridge (Everett C. Updike, Cambridge, of counsel), for respondents.
Before STALEY, J.P., and COOKE, SWEENEY, SIMONS and KANE, JJ.
Appeal from a judgment of the Supreme Court, entered December 9, 1970 in Washington County, upon a decision of the court at a Trial Term, without a jury, which dismissed the complaint on the merits.
This appeal presents the issue of whether there is sufficient evidence in the record to find the existence of a public highway. Running north off Camden Valley Road in the town of Salem, Washington County is a three-fourth mile stretch of highway known as Kaufman Road. From the early 1900's this road continued northerly past the house now owned by defendants to plaintiff's lands on the north (purchased by plaintiff in 1963), through a wooded and hilly area and connected with a road known as Fleming Road running southerly off Blind Buck Road. There is evidence that it was an ordinary dirt road, as were most of the rural roads at that time, traveled by all kinds of horse-drawn vehicles, by the public generally, by the mail carrier, the farmers, timbermen and by everybody who 'had occasion to go from Upper or Lower Camden'. Commencing in 1945 plaintiff and others drove on the road to hunt in the general area, and up until 1963 the road remained the same. In that year defendants planted a lawn over the road bed in front of their house and constructed a partial barricade. By 1965 a complete barricade was accomplished by means of a parking area, log barriers and stone walls.
This action was brought for a judgment declaring that the road known as Kaufman Road was a public highway and enjoining defendants from interfering with same. On this appeal plaintiff relies on section 189 of the Highway Law, maintaining that defendants have blocked a public highway. Section 189 provides that 'All lands which shall have been used by the public as a highway' for the requisite number of years 'shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway * * *.' The courts have consistently held that in order to establish a public highway under this statute, 'naked user by the public * * * is not enough'. (DeHaan v. Broad Hollow...
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