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LONG ISLAND BEACH BUGGY ASSOCIATION v. TOWN ISLIP ET AL. (11/01/68)
SUPREME COURT OF NEW YORK, SPECIAL TERM, SUFFOLK COUNTY
1968.NY.43367 <http://www.versuslaw.com>; 295 N.Y.S.2d 268; 58 Misc. 2d 295
November 1, 1968
LONG ISLAND BEACH BUGGY ASSOCIATION, INC., ET AL., PLAINTIFFS,v.TOWN OF ISLIP ET AL., DEFENDANTS. EMIL LEMP, PLAINTIFF, V. TOWN OF ISLIP ET AL., DEFENDANTS
Siben & Siben for plaintiffs.
Ira W. Levy for Town of Islip, defendant.
Reilly, Like & Schneider for Village of Ocean Beach, defendant.
F. V. Goggins for Village of Saltaire.
William R. Geiler, J.
Plaintiffs, Long Island Beach Buggy Association (hereinafter referred to as Libba), and Lemp, have commenced separate actions to have the "Beach Buggy Ordinance" of the Town of Islip declared invalid. In addition, plaintiff Lemp also requests that the "Beach Buggy Ordinances" of the Villages of Ocean Beach and Saltaire be declared unconstitutional.
Lemp is a resident of the Town of Islip and is the owner of real property not only on the mainland but also on Fire Island within the Town of Islip. He is engaged in the general contracting business on the mainland as well as in a number of communities on Fire Island within the Town of Islip. Lemp uses a motor vehicle and has had occasion to traverse the beach route and inland route (commonly known as the "Burma Road") in connection with his general contracting business. He maintains that the subject "Vehicular Ordinances" which restrict his use of the beach and inland routes are unconstitutional and should be declared invalid.
Libba is composed of persons who are not residents of the Town of Islip but who desire to travel by vehicle over the beach and inland route on Fire Island within the Town of Islip. These persons are prohibited from so doing by the provisions of the Islip Town ordinance.
Libba contends that the Islip Town ordinance discriminates against their organization and therefore is in violation of their constitutional rights under the Fourteenth Amendment of the United States Constitution. Both actions were tried before this court simultaneously. The court, for the purpose of clarity, will deal with the arguments commonly advanced against all of the subject ordinances by the plaintiffs individually and collectively.
These arguments are basically as follows:
1. An easement by prescription has been created by people using the inland and beach route and such vested interests cannot be regulated or destroyed.
2. The public has acquired an absolute right to the use of vehicles on the beach and inland routes.
In effect, plaintiffs, and particularly Lemp, are seeking to establish an absolute right to the use of all of the beach area and the area north of the dunes on Fire Island by virtue of a theory of easement by prescription.
What must the plaintiffs show in order to establish an easement by prescription? They must demonstrate that the use claimed is adverse, continuous, hostile, uninterrupted and exclusive (Kratter v. Becker, 218 N. Y. S. 2d 277).
Was an easement by prescription established with reference to the inland route?
The evidence introduced by plaintiffs, themselves, indicates that there was no adverse or hostile use of the "inland route". The record is bursting with evidence of homes going up in the middle of the inland route with no objection by the users. No attempt was made to prevent these homes from being erected in the middle of the route nor was there any evidence of any intentional destruction of these homes. The only action taken was a continual changing of the route as more houses were built. Certainly, this does not constitute adverse use. In fact, permissive rather than adverse use is the only conclusion that can be drawn from the evidence in the record (King v. Goldstein, 19 Misc. 2d 523).
The element of exclusive use is also absent herein (see Di Leo v. Pecksto Holding Corp., 304 N. Y. 505). The vehicular use by people in general is not an exclusive use by plaintiff Lemp.
The requirement of uninterrupted use is lacking herein by reason of the fact that houses were built in the middle of the inland route. Furthermore, property within the inland route was condemned by the Federal Government under the National ...