Wilson v. Palmer

• Decision Date: 03 July 1996
• Citation: Wilson v. Palmer, 644 N.Y.S.2d 872, 229 A.D.2d 647 (N.Y. App. Div. 1996)
• Parties: Robert E. WILSON et al., Appellants, v. Rogene PALMER, Respondent.
• Writing for the Court: WHITE
• Court: New York Supreme Court — Appellate Division

Page 872

644 N.Y.S.2d 872

229 A.D.2d 647

Robert E. WILSON et al., Appellants, v. Rogene PALMER, Respondent.

Supreme Court, Appellate Division Third Department.

July 3, 1996.

Silver and Lake (George E. Silver, of counsel), Morristown, for appellants.

James P. McClusky, Adams, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and SPAIN, JJ.

WHITE, Justice.

Appeal from a judgment of the Supreme Court (Demarest, J.), entered February 24, 1995 in St. Lawrence County, upon a decision of the court in favor of defendant.

Plaintiffs and defendant own adjoining properties in the Town of Oswegatchie, St. Lawrence County, that abut a 25-foot-wide right-of-way they use in common with others. In October 1992, defendant paved the portion of the right-of-way abutting her premises and placed a 2 1/2-inch high speed bump across the main portion of said right-of-way. Defendant also installed a sign on the side of the road reading, "Slow--Speed Bump". Plaintiffs commenced this action in June 1993 seeking, inter alia, an injunction directing defendant to remove the speed bump from the right-of-way. A nonjury trial ensued before Supreme Court resulting in a verdict in favor of defendant. Plaintiffs appeal.

It is well established that the owner of the servient estate has the right to use its land in any manner that does not unreasonably interfere with the rights of the owner of the easement (see, Briggs v. Di Donna, 176 A.D.2d 1105, 1108, 575 N.Y.S.2d 407; Wechsler v. People of the State of New York, 147 A.D.2d 755, 757, 537 N.Y.S.2d 900, lv. denied 74 N.Y.2d 610, 546 N.Y.S.2d 554, 545 N.E.2d 868, appeal dismissed 74 N.Y.2d 793, 545 N.Y.S.2d 109, 543 N.E.2d 752). We find that the speed bump in question does not substantially interfere with plaintiffs' reasonable use and enjoyment of their easement. Their path remains unimpeded with the exception of the speed bump which, while undoubtedly encouraging plaintiffs...