LANCE D. HOFFMAN et al., Appellants,
TOWN OF SHANDAKEN et al., Respondents.
Calendar Date: January 12, 2017
Patricia L. Ellison, Kingston, for appellants.
B. Aumand, Albany, for respondents.
Before: Peters, P.J., Egan Jr., Rose, Devine and Aarons, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Gilpatric, J.), entered
March 4, 2016 in Ulster County, which granted defendants'
motion for summary judgment dismissing the complaint.
installed a privacy fence near the edge of the paved portion
of Fox Hollow Road, which runs along the front of their real
property in the Town of Shandaken, Ulster County. When, two
years in a row, a snow plow operated by defendant Town of
Shandaken allegedly damaged part of their fence, plaintiffs
commenced this action. They asserted two causes of action,
each alleging trespass and negligence related to the damage
to the fence, and a third cause of action alleging that the
Town widened Fox Hollow Road in 2010, taking their property
without compensation and, in the process, altering the
drainage that caused run-off from the road to contaminate
their well. Defendants then moved, pre-answer, to dismiss the
complaint, which motion Supreme Court (Melkonian, J.)
partially granted in a 2012 order dismissing the first cause
of action in its entirety . Following joinder of issue and
discovery, defendants moved for summary judgment dismissing
the remaining two causes of action, asserting that Fox Hollow
Road is a highway by use, the Town has the right to open a
highway by use to the width of at least three rods pursuant
to Highway Law § 189 and the Town's plowing of snow
and widening of the pavement were done to maintain and
improve the public's right of passage. Because plaintiffs
conceded that their fence and the 2010 widening were within
the three rods, defendants argued that plaintiffs were
precluded from recovering any damages. Supreme Court
(Gilpatric, J.) agreed and, in a 2016 order, granted
defendants' motion. Plaintiffs now appeal.
undisputed that Fox Hollow Road is a public highway by use
(see Dutcher v Town of Shandaken, 23 A.D.3d 781, 782
), and Highway Law § 189 directs the town
superintendent to open all public highways by use "to
the width of at least three rods" (Highway Law §
189). Included within the scope of a highway easement created
by use are "'such uses as appertain directly or
indirectly to the right of passage and tend in some way to
preserve or make more easy the exercise of such
right'" (Dutcher v Town of Shandaken, 23
A.D.3d at 782, quoting Thompson v Orange & Rockland
Elec. Co., 254 NY 366, 369 ; see Ferguson
v Producers Gas Co., 286 A.D. 521, 523 ).
contend that the Town's easement is limited to the width
of the paved portion of Fox Hollow Road prior to the 2010
expansion - regardless of how narrow that may be - because
that is the only portion of the road that has been used by
the Town for the statutory period of 10 years (see
Highway Law § 189). We cannot agree. After a roadway is
established as a highway by use, Highway Law § 189
plainly permits a town to maintain and improve it in
furtherance of the public's right of travel, to the width
of "at least three rods." Stated differently, so
long as the use at issue relates directly or indirectly to
the public's right of travel, the use of the highway may
be extended past the paved portion of the road to a width of
at least three rods. In our view, this interpretation of the
statute is consistent with case law holding that the extent
of the easement is defined by its actual use (see
Schillawski v State of New York, 9 N.Y.2d 235, 238
; Town of Goshen v Serdarevic, 17 A.D.3d 576,
578 ; Matter of Danial v Town of Delhi, 185
A.D.2d 500, 502-503 , lv denied 81 N.Y.2d 706');">81 N.Y.2d 706
; Matter of Hill v Town of Horicon, 176 A.D.2d
1169, 1170 , lv denied 80 N.Y.2d 752');">80 N.Y.2d 752 ).
Inasmuch as the Town's plowing and widening of Fox Hollow
Road are uses that are "necessary to preserve the
public's right of passage, " they define the
Town's easement pursuant to Highway Law § 189
(Dutcher v Town of Shandaken, 23 A.D.3d at 782;
see generally Thompson v Orange & Rockland Elec.
Co., 254 NY at 369). Further, it is undisputed that
plaintiffs' fence and the widening of the roadway were
well within the three-rod width that defendants are
statutorily authorized to open. Given that the Town was
engaging in permissible uses of its easement, we find no
error in Supreme Court's dismissal of the second cause of
agree with plaintiffs, however, that Supreme Court erred in
granting defendants' motion for summary judgment as to
the third cause of action to the extent that it alleges a de
facto taking based upon the contamination of plaintiffs'
well inasmuch as the record establishes that defendants
proffered no proof and, therefore, did not meet their initial
burden concerning this claim.
Peters, P.J., Egan Jr., Devine and Aarons, JJ., concur.
that the order is modified, on the law, without costs, by
reversing so much thereof as granted defendants' motion
for summary judgment dismissing the third cause of action;
motion denied to that extent; and, as so modified, affirmed.