Village of Schoharie v. Coons
| Decision Date | 20 April 1970 |
| Citation | 309 N.Y.S.2d 545,34 A.D.2d 701 |
| Parties | VILLAGE OF SCHOHARIE, Appellant, v. Kenneth COONS et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Charles M. Wright, Schoharie, for appellant.
David B. Alford, Middleburgh, for respondents.
Before REYNOLDS, J.P., and STALEY, GREENBLOTT, COOKE and SWEENEY, JJ.
REYNOLDS, Justice Presiding.
Appeal from a judgment of the County Court of Schoharie County, which dismissed appellant's complaint after a trial without a jury.
About three months after the respondents in 1962 purchased a parcel of real property located in the Village of Schoharie, they allegedly first discovered the existence of a tile conduit which formed a portion of the surface water drainage system of the appellant. This conduit, which terminated on respondents' property, discharged water onto a portion of respondents' property which had been swampland partially covered with undergrowth. In 1964, after detergent purportedly from a nearby laundromat as well as water was noticed being discharged from the conduit and nothing was done about this condition after a complaint was lodged with the Mayor and Village Superintendent, respondent Kenneth Coons took his bulldozer, crushed the tile conduit which was on his property, and covered it with fill. This caused the conduit to break open on the adjacent property of Marion Lawson. Thereafter, Coons buried the exposed conduit on Marion Lawson's property. Thus at present, the end of the conduit is buried underneath the Lawson property about 25 feet from the boundary line between the two properties. Subsequently, in the Spring of 1968, after a heavy rain, some flooding occurred when the drainage system failed to take care of the water and thereupon the appellant, contending that it had acquired an easement by prescription, commenced the instant action to require respondents to clear the conduit so that surface water could be discharged as it had been prior to the time when the drain was plugged by crushing and burying it. The trial court, noting that to establish a prescriptive easement it was necessary to establish five essential elements: hostile possession under a claim of right, actual possession, notorious possession, exclusive possession and continuous possession, found that the last four elements had been established but concluded that since there were no written records, 'the installation and first use was by permission', which 'in the absence of proof to the contrary * * * is presumed * * * to continue', and thus hostile possession was not established. Accordingly, the trial court dismissed appellant's complaint.
We cannot agree that a prescriptive easement was not established. The trial court determined that open, notorious and uninterrupted possession had been shown, and we find no basis on the instant record to disturb these factual findings. However, once such possession had been established the...
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