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Del Fuoco v. Mikalunas

Appellate Division of the Supreme Court of New York, Third Department
Mar 20, 1986
118 A.D.2d 980 (N.Y. App. Div. 1986)

Summary

noting that obstructions placed upon a right-of-way never effectively interfered with defendants' use and enjoyment of the right-of-way

Summary of this case from Patterson v. Sharek

Opinion

March 20, 1986

Appeal from the County Court of Chenango County (Ingraham, J.).


Plaintiffs and defendants are owners of neighboring parcels of land located in the Town of Sherburne, Chenango County. In February 1984, defendants Victor A. Mikalunas and Nina J. Mikalunas (hereinafter defendants) requested that plaintiffs remove certain obstructions from a right-of-way across plaintiffs' property. Defendants had acquired the right to use that right-of-way by grant in 1961, and now needed the obstructions removed so that certain heavy equipment could be moved onto their property. Plaintiffs commenced this action pursuant to RPAPL article 15 to determine the validity of defendants' claim to the easement. Plaintiffs alleged that defendants had abandoned the easement and, alternatively, that plaintiffs had adversely possessed the easement for the prescriptive period so that defendants' rights had been lost. Defendants counterclaimed, seeking to have plaintiffs barred from asserting any interest in the right-of-way contrary to defendants' interest therein. After a nonjury trial, County Court dismissed the complaint and granted the counterclaim.

We affirm. For plaintiffs to prove that defendants had abandoned the easement, they must show by clear and convincing evidence, inter alia, both defendants' intention to abandon and some overt act or failure to act in support of such intention (see, Bouchard v. Abbott, 110 A.D.2d 985, 986). A showing of mere nonuse is insufficient in this regard (supra). Here, plaintiffs assert that, for many years, they placed obstructions such as a woodshed and certain vegetation upon the right-of-way and that defendants never complained about such obstructions. This, according to plaintiffs, evidenced defendants' intention to abandon the easement. This contention is belied, however, by evidence presented by defendants that they continued to use the right-of-way during the time in question but that, since their usage was such that they could merely go around the obstructions in the past, they never objected to them. Given testimony such as this, County Court committed no error in concluding that plaintiffs' proof was insufficient to show any intention on the part of defendants to abandon the easement (see, supra; Strevell v. Mink, 6 A.D.2d 350, affd 6 N.Y.2d 850).

We likewise conclude that, because the obstructions placed upon the right-of-way never effectively interfered with defendants' use and enjoyment thereof, plaintiffs never asserted any rights in conflict with defendants' rights. Therefore, plaintiffs' claim to unfettered ownership of the right-of-way land under the doctrine of adverse possession must be rejected (see, Powlowski v. Mohawk Golf Club, 204 App. Div. 200, 203-204; see also, Castle Assoc. v. Schwartz, 63 A.D.2d 481, 487-488, 490).

Judgment affirmed, with costs. Mahoney, P.J., Main, Mikoll and Yesawich, Jr., JJ., concur.


Summaries of

Del Fuoco v. Mikalunas

Appellate Division of the Supreme Court of New York, Third Department
Mar 20, 1986
118 A.D.2d 980 (N.Y. App. Div. 1986)

noting that obstructions placed upon a right-of-way never effectively interfered with defendants' use and enjoyment of the right-of-way

Summary of this case from Patterson v. Sharek
Case details for

Del Fuoco v. Mikalunas

Case Details

Full title:PAUL J. DEL FUOCO et al., Appellants, v. VICTOR A. MIKALUNAS et al.…

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: Mar 20, 1986

Citations

118 A.D.2d 980 (N.Y. App. Div. 1986)

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