The opinion of the court was delivered by: NEAL P. MCCURN
MEMORANDUM-DECISION AND ORDER
Plaintiff commenced this suit on December 24, 1991 in New York State Supreme Court, Franklin County, seeking a prescriptive easement or an easement by necessity through defendants' land in Chateaugay, New York. Defendants removed the case to this court pursuant to 28 U.S.C. § 1332(a)(2) (1988 & West Supp. 1992) (diversity of citizenship). Plaintiff asserts that the removal was improper because this court lacks jurisdiction, and thus moves to remand the case to state supreme court pursuant to 28 U.S.C. § 1447(c) (1988).
For the reasons stated herein, plaintiff's motion to remand is granted.
In 1961, plaintiff Earl Cowan purchased a parcel of property in Chateaugay, New York, which is located at the northern-most point of this district, on the Canadian boarder.
A town road called Rhinehart Road provided the sole route for ingress to and egress from the property. On May 11, 1981, the Town of Chateaugay abandoned Rhinehart Road, thus leaving plaintiff with no conventional avenue to his property.
Despite the abandonment, plaintiff continued to use the former roadway to access his property. To facilitate its use, he allegedly maintained its condition by grading it, filling it, clearing it, and generally using it as access to his otherwise inaccessible parcel. Plaintiff's unfettered use of the road allegedly continued even after defendants Kendal and Dorothy Windeyer purchased a parcel adjacent to plaintiff's land in 1989. The Windeyer's purchase was significant because the abandoned Rhinehart Road passed through their new parcel.
In April, 1991, plaintiff allegedly notified the Windeyers of his intent to sell his parcel and offered them an opportunity to purchase it. The Windeyers not only declined the offer but, fearing diminished property value through increased traffic on the abandoned roadway, threatened to prevent any sale of the property. In furtherance of their threat, the Windeyers obstructed portions of the road with various debris so as to deny access to the property, thereby forewarning potential buyers that the property would be inaccessible via the former Rhinehart Road. The Windeyers also informed plaintiff of their plan to build a stone wall across the road so as to further obstruct attempts at passage.
In light of these threats, plaintiff commenced this action against the Windeyers in New York State Supreme Court, seeking injunctive and declaratory relief from the Windeyers' continued obstruction of passage along the former Rhinehart Road and $ 7,000.00 in damages resulting from the their alleged interference with the sale of his property. The legal basis for plaintiff's suit is that he, by virtue of his continued open and notorious use of the roadway, acquired a prescriptive easement over the strip of land at issue. Plaintiff also asserts an interest in an easement by necessity over the abandoned roadway due to the fact that his parcel is otherwise without an avenue of ingress and egress.
Plaintiff moves to remand this case to the supreme court on grounds that this court lacks subject matter jurisdiction. He argues that the court lacks subject matter jurisdiction because the amount in controversy does not exceed $ 50,000.00, thus precluding reliance upon the diversity statute.
"If at any time before final judgment it appears that the district court lacks subject matter jurisdiction [over a removed case], the case shall be remanded." 28 U.S.C. § 1447(c); see, e.g., McRae v. Sweet, No. 91- CV-1403, 1991 U.S. Dist. LEXIS 18260 (N.D.N.Y. Dec. 13, 1991). Plaintiff argues that the court lacks subject matter jurisdiction-- and that the case must therefore be remanded-- because the criteria for the Windeyers' purported basis for jurisdiction are not satisfied in this case.
The Windeyers argue that this court has jurisdiction under the "diversity" statute, 28 U.S.C. § 1332. Under that statute, they may invoke this court's jurisdiction by establishing that this suit is between citizens of a state and citizens of a foreign country and that "the matter in controversy exceeds the sum or value of $ 50,000." Id. While apparently conceding that the diverse citizenship requirement is satisfied, plaintiff contends that jurisdiction is nonetheless lacking because the amount in controversy does not exceed $ 50,000.00. The basis of plaintiff's argument is that the value of the Windeyers' property is only $ 42,918.45 and, according to plaintiff, "it is impossible for an easement to damage property in excess of its total value." Pl. Mem. (2/27/92) at 1. Since the total value of the Windeyers' property is less than $ 50,000.00, argues plaintiff, a fortiori the damage caused by the easement cannot exceed that amount. The Windeyers, for their part, proffer extensive evidence showing that their property value is far in excess of $ 50,000.00, and that imposition of the proposed easement would diminish their property value to a virtual nullity. Thus, argue the Windeyers, the amount in controversy far exceeds $ 50,000.00.
In pursuing these arguments, the parties present the court with an issue which has created a sharp division among federal courts concerning the perspective from which the amount in controversy should be measured. See, e.g., Ace Hardware Co., Inc. v. Ace Hardware Corp., No. 81- CV-798, 33 Fed. R. Serv. 2d (Callaghan) 1374 (N.D.N.Y. 1981) (Munson, C.J.) (discussing but not resolving the split among federal courts). Specifically, both parties presume that the amount in controversy should be measured according to the total damage done to the Windeyer-- the defendant-- property in this case. Their presumption is not without some precedent, see, e.g., McCarty v. Amoco Pipeline Co., 595 F.2d 389, 395 (7th Cir. 1979); Donohue v. Board of Elections, 435 F. Supp. 957, 964 n.11 (E.D.N.Y. 1976) (citations omitted), but nevertheless runs contrary to the ample case authority from this circuit holding that the amount in controversy for jurisdictional purposes should be measured strictly from the plaintiff's perspective, without regard to the damage caused to any other party. See, e.g., Kheel v. Port of New York Auth., 457 F.2d 46, 48-49 (2d Cir.), cert. denied, 409 U.S. 983, 93 S. Ct. 324, 34 L. Ed. 2d 248 (1972); Myers v. Long Island Lighting Co., 623 F. Supp. 1076, 1078 (E.D.N.Y. 1985) (citing St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 285, 82 L. Ed. 845, 58 S. Ct. 586 (1938)); Podrazik v. Blum, 479 F. Supp. 182, 188 (N.D.N.Y. 1979) (Foley, J.); see also Ferris v. General Dynamics Corp., 645 F. Supp. 1354, 1361 & n.7 (D.R.I. 1986); 1 Moore's ...