Opinion
No. 2014–1146.
01-04-2017
Dr. Richard G. ORMAN and MARY S. ORMAN, Plaintiffs, v. Sandra K. CURTIS, Defendant.
Michael J. Kieffer, Esquire, Rochester for Plaintiffs. Travis J. Barry, Esquire, Hammondsport for Defendant.
Michael J. Kieffer, Esquire, Rochester for Plaintiffs.
Travis J. Barry, Esquire, Hammondsport for Defendant.
MARIANNE FURFURE, J.
This matter comes before the Court after trial on plaintiffs' complaint seeking a declaratory judgment identifying and defining the boundary lines of the parties' common driveway easement and to resolve the issue of whether defendant has the right to store and place large objects at or near the edge of the parties' common driveway. Plaintiffs also claim that defendant has created a nuisance by storing "junk objects" along the common boundary line between the parties' properties and they request an order requiring defendant to abate this nuisance. Defendant opposes plaintiffs' requested relief and counterclaimed with two causes of action: nuisance and trespass. The Court conducted a non-jury trial on May 17, 2016, which included a viewing of the premises. Counsel were afforded additional time to submit post-trial memoranda and proposed findings of fact and conclusions of law. Based upon the proof presented at trial and after review of the parties' submissions, I make the following findings of fact and conclusions of law.
The parties' adjacent parcels are located on Shethar Street in the Village of Hammondsport and are divided by a common lot line. In 1952, plaintiffs' lot, at 12 Shethar Street, was conveyed by recorded deed to James A. and Betty B. Shaw. When the Shaws owned the property, there was a single outbuilding in the backyard which housed a 20' x 20' workshop/storage room (workshop) and an attached garage. In 1967, the defendant's lot, at 10 Shethar Street, was conveyed to defendant and her now deceased husband, Crocker Curtis, by deed recorded July 20, 1967.
In 1986, the Shaws contracted to sell their property to the Stachniks, plaintiffs' predecessors in title. Separate surveys, obtained as a result of the impending sale, revealed that the boundary line between the Shaw and the Curtis properties straddled the common driveway and ran through the middle of the Shaws' garage. Although the workshop was entirely built on Shaws' property, the garage structure extended nine feet onto defendants' property. The results of the surveys led Curtis and the Stachniks to enter into a Boundary Line Agreement (Agreement) which provided that both parties would forever have the right to use the driveway jointly for all ordinary purposes of ingress and egress to enter their premises from Shethar Street (Although some documents reference Shether Street and others reference Sheathar Street, they all refer to the same street). The Agreement also addressed the garage encroachment on defendants' property and provided that the Stachniks, and "their distributees, heirs and assigns," had permission to use the garage in the future "as they have used the garage in the past" for "so long as the garage continues to exist." However, the parties agreed that, if the garage was destroyed or removed, no part of it could be rebuilt on the Curtis property.
When plaintiffs purchased the property from the Stachniks in April, 2005, the workshop had been partially renovated. Previous owners had installed drywall, wainscoating, large ceiling beams, picture windows and lighting. Plaintiffs chose to continue the renovation work and received a building permit to do so. They added a shower and a kitchen, thereby making the former workshop a self-sufficient living quarters. Although plaintiffs had originally intended that the space would be used as plaintiffs' home office, they decided to rent the space to those interested in visiting the wine region of upstate New York. Plaintiffs rented the unit commercially in 2009, 2010 and 2011, until they were advised that they could not do so by the Village. Plaintiffs have not rented the building commercially since 2011, but continue to have friends and family stay in the unit from May through November when plaintiffs are in residence in New York.
Defendant objects to plaintiffs' use of the renovated workshop as living quarters. She claims that the Agreement allows the garage to remain as an encroachment on her property only so long as the garage continues to be used as a garage, as it had been used since she has lived on her property. Given the change in usage, defendant seeks to have the encroaching structure removed.
In this case, each party claims the other has committed acts which constitute a nuisance. Plaintiffs claim that defendant has been storing "junk objects" along and on the edge of the common boundary line and that these "nuisance encroachments" have been increasing over time, thereby making it more difficult for plaintiffs and their guests to use the driveway for ingress and egress as provided in the Agreement. Plaintiffs claim that defendant's excessive encroachments have deprived them of their use of the driveway by intentionally making it more difficult to use the common driveway without hitting defendant's objects or damaging their cars. Plaintiffs also claim that, by storing junk objects and debris on her property, defendant has created an "eyesore" which has diminished plaintiffs' property value.
Defendant claims that plaintiffs have created a nuisance on their property by illegally converting the workshop into a guest home for themselves and others. She claims that the separate living quarters has resulted in "constant traffic in and out of the shared driveway, trespass onto (defendant's) property by vehicles in their attempt to turn around in the driveway, and strangers looking into (defendant's) windows off of the shared driveway." Defendant claims that plaintiffs' guest home "in an otherwise quiet, residential, rural neighborhood" intentionally and unreasonably creates "great loss of use and enjoyment by (defendant) of her property." Defendant also asserts a second cause of action for nuisance based on her claim that plaintiffs were feeding feral cats on their porch during the summer months and failing to dispose of the empty cat food cans when they returned to their Florida home in the winter which creates a risk of damage to defendant's personal property.
A nuisance can be characterized as either public or private. A public nuisance interferes with or causes damage to the public in the exercise of rights common to all, while a private nuisance is conduct directed at a single person, or a few people, which interferes with that person's use or enjoyment of his land (Copart Industries, Inc. v. Consolidated Edison Company of New York, Inc., 41 N.Y.2d 564, 568 [1977] ). To prevail on a cause of action for private nuisance, a party must establish an interference, substantial in nature, intentional in origin, unreasonable in character, with a person's property right to use and enjoy land, caused by another's conduct in acting or failing to act (Matteliano v. Skitkzi, 85 AD3d 1552, 1553 [4th Dept.2011] ; Vacca v. Valerion, 16 AD3d 1159, 1160 [4th Dept.2005] ; Hitchcock v. Boyack, 277 A.D.2d 557 [3rd Dept.2000] ). The interference can be intentional and unreasonable, or negligent and reckless, or actionable under the rules governing liability for abnormally dangerous conditions or activities (Copart Industries, Inc. v. Consolidated Edison Company of New York, Inc., Id. at 569).
In this case, each party's claim of private nuisance against the other is based on alleged intentional and unreasonable conduct. Conduct is intentional when it is done purposefully or when the result is certain, or substantially certain, to occur (Copart Industries, Inc. v. Consolidated Edison Company of New York, Inc., Id. at 571). Conduct that is intentional must also create an interference with another's use or enjoyment of his land that is "substantial in nature" and "unreasonable in character" (Balunas v. Town of Owego, 56 AD3d 1097, 1098 [3rd Dept.2008] ). The inconvenience and interference cannot be "fanciful, slight or theoretical, but certain and substantial, and must interfere with the physical comfort of the ordinarily reasonable person" (Dugway, Ltd. v. Fizzinoglia, 166 A.D.2d 836, 837 [3rd Dept.1990] ). Things that are disagreeable or unsightly, "no matter how irritating or unpleasant, are not nuisances" (Balunas v. Town of Owego, Id.; Dugway, Ltd. v. Fizzinoglia, Id. ).
Plaintiffs' Nuisance Cause of Action—Encroachment
Plaintiffs first nuisance claim is based on their contention that defendant has deprived them of their use and enjoyment of the driveway by intentionally and unreasonably storing junk objects along the edge of the common boundary line which has made it more difficult to use the driveway for fear of damaging their vehicles or hitting defendant's objects. Plaintiffs claim that defendant has other places in her yard to store these objects, but refuses to do so, even though plaintiffs have made several requests. Plaintiffs claim that they have had to create a new parking space in part of their backyard in order to use the shared driveway. Plaintiffs assert that defendant's conduct in storing junk objects in such a manner as to hamper plaintiffs' use of the common driveway, and failing to remove the objects when asked to do so, amounts to a nuisance because she has intentionally and unreasonably created a substantial interference with plaintiffs' right to use and enjoy their property.
At trial, defendant testified that she uses the items placed along the boundary in maintaining the gardens on her property. She claims that she has no other place to store this garden equipment, after she planted a "woodland garden" on her property in the area where she formerly stored her yard equipment. Regardless of her reasons, defendant's conduct was intentional and purposeful. However, her conduct cannot rise to the level of creating a nuisance unless it substantially interferes with plaintiffs' use and enjoyment of their property. To determine whether conduct rises to the level of substantial interference, the trier of fact must review the totality of the circumstances and balance the rights of the defendant to use her property against the rights of the plaintiffs to enjoy their property (Iny v. Collom, 13 Misc.3d 75, 79 Sup Ct, App Term, [9th and 10th Judicial Districts 2006] ). In support of their claim, plaintiffs submitted several photographs taken on various dates from August 26, 2013 through May 16, 2016, which depict the property boundary line edged with defendant's objects including large plastic barrels, a large wooden pull cart and two flat-bed trailers.
Plaintiff testified that, as a result of defendant's failure to relocate these objects, he had to build a parking space in part of his backyard so that he could safely back out of his driveway. Although plaintiffs claim that defendant's conduct has made it more difficult to use the driveway for fear of damaging their vehicles or hitting defendant's objects, their own evidence establishes that the common driveway, though lined with defendant's yard equipment, is narrow and graveled, but unobstructed to the entrance to plaintiffs' garage (plaintiffs' Exhibits No.12 and # 14). The photographs accurately represent the condition of the driveway as viewed by the Court during the on-site viewing after trial. Although plaintiff testified that he has to be careful to avoid defendant's yard equipment when using the driveway, it appears that, by exercising ordinary caution, plaintiffs have an adequate amount of space to drive into, or back out of, the garage without hitting the yard equipment. While it appears that defendant's strategically placed equipment prevents plaintiffs from executing a K-turn in the driveway, they could never have performed such a maneuver in the driveway without driving onto a portion of defendant's property. Therefore, plaintiffs' claim that they created a parking space in their yard next to the spruce tree appears to be an addition of convenience for themselves and their summer guests rather than an addition of necessity. Defendant's placement of objects so near the boundary line may be disagreeable or unsightly, but plaintiffs have failed to establish that, by placing these objects along the boundary line, defendant has substantially interfered with their use and enjoyment of the common driveway. Therefore, this cause of action alleging nuisance is denied.
Plaintiffs' Nuisance Cause of Action Visual—Impact
Plaintiffs also claim that, by storing junk objects and debris on her property, defendant has created an "eyesore" which has diminished the value of their property. Plaintiffs' evidence included a local real estate agent (agent) who testified that she showed plaintiffs' house to a client who was not interested in plaintiffs' property because of the shared driveway, which prohibited him from installing a fence on the property line, and the "collection of junk and debris" situated along the boundary line. The agent testified that, neither issue weighed more heavily than the other in the prospective buyer's decision and that she had not shown the property to other potential buyers nor discussed a selling price for the property.
Plaintiffs presented no other evidence to establish that their property value has been diminished solely by the condition of defendant's property. They have not listed their property for sale, nor did they present proof that they have tried, but have been unable, to sell their property because of the condition of defendant's property. Further, even if plaintiffs could prove that defendant deliberately and intentionally placed these items on her property for no purpose other than to create an eyesore to both plaintiffs and potential real estate buyers, the condition of her property does not rise to the level of a nuisance which substantially interferes with plaintiffs' use and enjoyment of their land (Matteliano v. Skitkzi, Id.; Balunas v. Town of Owego, Id.; Ruscito v. Swaine, Inc., 17 AD3d 560, 561 [2nd Dept.2005] ; Dugway, Ltd. v. Fizzinoglia, Id. ) Therefore, this nuisance claim is also denied.
Defendant's Nuisance Cause of Action—Guest Home
Defendant claims that plaintiffs have created a nuisance by illegally converting the workshop into a guest home for themselves and others. Defendant claims that plaintiffs' guest home "in an otherwise quiet, residential, rural neighborhood" intentionally and unreasonably creates "great loss of use and enjoyment by (defendant) of her property." In her complaint, defendant alleges that she "has personally witnessed on countless occasions, and continuing as recently as the Summer of 2014, strangers using the garage at 12 Shethar Street as temporary living quarters." Defendant claims that this has caused her "tremendous loss of enjoyment to her home and real property" because of the "constant traffic in and out of the shared driveway, trespass onto (defendant's) property by vehicles in their attempts to turn around in the driveway, and strangers looking into (defendant's) windows off of the shared driveway." However, at trial defendant called no witnesses, presented no supporting evidence, nor testified about the activities she alleged in her complaint.
Defendant's claim that plaintiffs illegally converted the workshop into living quarters is not supported by the evidence. Plaintiffs testified that they received a building permit before starting work on the renovation project and, at the conclusion of the job, they received a certificate of occupancy from the Village of Hammondsport Building Inspector. Further, whether plaintiffs illegally converted the workshop to a living space has no bearing on her claim that plaintiffs created a nuisance because an illegal conversion is not one of the elements needed to establish a claim of private nuisance. Therefore, defendant's claim of nuisance based on plaintiffs' use of their guest house is also denied.
Defendant's Nuisance Cause of Action—Feral Cats
Defendant presented no evidence at trial in support of this cause of action and, in her proposed Findings of Fact and Conclusions of Law, admitted her lack of proof and consented to a dismissal of that cause of action. Therefore, defendant's second counterclaim, alleging nuisance based on a claim that plaintiffs were feeding feral cats, is dismissed.
Defendant's Trespass Cause of Action
A trespass occurs when a person wrongfully uses the property of another (Granchelli v. Johnson Bldg. Co., 85 A.D.2d 891 [4th Dept.1981] ). Defendant's trespass action is based on her claim that the Agreement is a license given only to the Stachniks and, therefore, terminated when Stachniks sold the property to plaintiffs. Defendant further claims that, even if the rights established by the Agreement were conveyed to plaintiffs, plaintiffs' renovation of the non-encroaching portion of the "garage building" into living quarters violated the terms of the Agreement because the garage building had never been used as living quarters.
Plaintiffs argue that the Agreement is not a license, but rather is an easement because the parties intended the Agreement to run with the land, given that the grants contained in the Agreement were given not only to the Stachniks, but also to "their distributees, heirs and assignees."
The mere labeling of an interest in property as an easement or a license does not resolve the issue because an interest, labeled as a license, may, in actuality, be an easement. "Easements and licenses in real property are distinct in principle, though it is sometime difficult to distinguish them. An easement implies an interest in land ordinarily created by a grant and is permanent in nature" (Millbrook Hunt, Inc. v. Smith, 249 A.D.2d 281, 282 [2nd Dept.1998] ). A license is a revocable privilege given to another to do one or more acts of a temporary nature upon the property without granting any interest in land itself (Union Sq. Park Community Coalition, Inc. v. New York City Dept. of Parks and Recreation, 22 NY3d 648, 649 [2014] ; Roman Catholic Church of Our Lady of Sorrow v. Prince Realty Management, LLC, 47 AD3d 909, 911[2nd Dept.2008] ). A license is a revocable and non-assignable privilege (Ark Bryant Park Corp. v. Bryant Park Restoration Corp., 285 A.D.2d 143, 150 [1st Dept.2001] ). To determine the true character of an interest, the Court must look at the nature of the right rather than the label used by the parties to describe the interest (Millbrook Hunt, Inc. v. Smith, Id. ).
In the Agreement, defendant and her distributees, heirs and assigns gave the Stachniks and their distributees, heirs and assigns "the privilege and license" to use that part of Stachnik's garage that encroached on defendant's property. This grant was given with two stipulations: (1) that plaintiffs and their distrubutees, heirs and assigns could use the garage "so long as the garage continues to exist." However, if the garage was destroyed and/or removed, it could not be rebuilt on defendant's property, and (2) Stachniks and their distrubutees, heirs and assigns agreed to continue to use the garage as the Shaws had used it in the past.
The nature of the right created by the Agreement indicates that plaintiffs' right to use the garage is dependent on the condition and status of the garage, regardless of who owns either parcel, as the Agreement binds the Stachniks and the Curtis' "their distributees, heirs and assigns." Therefore, it is possible that, if the garage is not destroyed or removed, many future owners of defendant's property would be bound by this Agreement. Although defendant argues that the Agreement is a license because it does not give plaintiffs any interest in defendant's land, the Agreement also provides that defendant will only regain control of that portion of her property on which the garage now sits when the garage no longer exists or is no longer used as a garage. Therefore, plaintiffs' right to use the garage cannot be terminated by defendant, but rather only by the destruction or removal of the garage, or its change in use, eventualities over which defendant has no control.
The nature of plaintiffs' rights under the Agreement are more akin to an easement rather than a license because plaintiffs' rights are attached to the garage, which makes plaintiffs' rights absolute as long as the garage exists and defendant has no authority to revoke her consent (Millbrook Hunt v. Smith, Id. ) Plaintiffs continue to have control and possession of the land as long as they maintain the garage in its present location and present use. This is much like a lease of the real property versus a license to use the land (see Union Square Park Community Coalition v. NYC Dept. of Parks and Recreation, Id. ) Regardless of the nature of the rights conveyed to plaintiffs' predecessors, defendant's claim that plaintiffs are trespassers because the Agreement was a license that terminated when Stackniks sold the property is without merit.
Defendant further claims that, even if the Agreement was conveyed to plaintiffs, plaintiffs' renovation of the non-encroaching portion of the "garage building" into living quarters breached that part of the Agreement that required plaintiffs to use the garage as it had been used in the past. Defendant maintains the Agreement covers the "garage building." She testified that the garage and workshop are attached and have always shared the same foundation and roof. However, the Agreement, which was either prepared or reviewed by defendant's attorney, and was reviewed by defendant before she signed it, did not refer to the "garage building," but only to the garage.
When construing any contract, the words used must be given their plain and ordinary meaning and be construed as an average person would who relates the word to the context in which it is used (Christodoulides v. First Unum Life Insurance Company, 96 AD3d 1603, 1605 [4th Dept.2012] ). The Court finds that the term "garage" refers to only the actual garage portion of the "garage building." First, the term is generally used to refer to a structure in which a person parks his car or stores equipment and other property. Plaintiffs' Exhibit # 17, a copy of the O'Heron survey, which the Agreement references, refers to this portion of the building as the "garage" and refers to the attached structure as the "shop." The survey shows the property boundary line running almost directly through the middle of the garage. The fact that the parties did not reference "the garage and shop," but only "the garage" is some indication that they only intended to include the garage within the terms of the Agreement. Second, no part of the shop was built on defendant's property and, therefore, the Stachniks had no need for a boundary line agreement for that part of the structure that was wholly located on their own property. Therefore, defendant's claim that plaintiffs' renovation of the shop breached that part of the Agreement that required plaintiffs to use the garage as it had been used in the past is denied.
Declaration of Scope and Use of Easements
Plaintiffs also seek a declaration regarding the nature, scope and maintenance obligations of the easement which grants plaintiffs the use of that part of defendant's property which plaintiffs need for ingress and egress to their premises. Plaintiffs claim that the boundary of the easement area is imprecise, undefined, and not "otherwise set out specifically" in the Agreement. Plaintiffs suggest that the "easement area" should be defined by the Court to include the "occupied area", a V-shaped triangle of defendant's property between plaintiffs' garage and defendant's barn. Plaintiffs ask the Court to issue a declaration delineating the rights of the parties to store and otherwise place large objects in the occupied area at or near the edge of the parties' common driveway and whether defendant has the right to cut down plaintiffs' bushes planted in the occupied area. Plaintiffs claim that without court intervention, they cannot know exactly the limit of defendants' rights in the occupied area.
Defendant opposes plaintiffs' application and claims that the easement only gives plaintiffs the right to travel over that portion of her property for the purpose of ingress to, and egress from, plaintiffs' property. Defendant claims that plaintiffs have no right to use her property for any other reason.
Initially, plaintiffs request that the Court void the Agreement and find that plaintiffs have title to the area extending to what was identified as the occupied line on the survey map prepared by O'Heron, claiming a mutual mistake. Plaintiffs argue that their predecessors in title had actually acquired title to this area based on continuous occupation. Plaintiffs' argument is without merit, as plaintiffs presented no evidence to support their argument that there was some mistake at the time the transfer occurred. The Agreement includes a waiver by the Stachniks of many interest in the real property on which the garage sits. Both parties had reviewed the O'Heron survey and chose to resolve the legal status of the property line in this manner. Plaintiffs have not proven that their predecessor in interest intended to transfer possession of this occupied area with the land included in their deed (Avraham v. Lakeshore Yacht and County Club, Inc., 278 A.D.2d 842 [4th Dept.2000] ).
"The extent of an easement claimed under a grant is generally limited by the language of the grant, as a grantor may create an extensive or a limited easement" (Mitkowski v. Marceda, 133 AD3d 574, 575 [2nd Dept.2015] citing Seide v. Glickman, 295 A.D.2d 494, 495 [2002] ). The driveway easement which, in this case, burdens defendant's property, gave Stachniks the right to use the stone driveway jointly with Curtis "for all ordinary purposes of ingress and egress ... to allow Stachnik to enter upon their (sic) premises from Sheather (sic) Street." This type of easement, granted in general terms, allows for "any reasonable use necessary and convenient for the purpose for which it is created" (Hoffman v. Delbeau, Id. at 804 citing Havel v. Goldman, 95 AD3d 1174, 1175 2nd Dept.2012] ). However, "(w)here the intention in granting an easement is to afford only a right of ingress and egress, it is the right of passage, and not any right in a physical passageway itself, that is granted to the easement holder" (Lewis v. Young, 92 N.Y.2d 443, 449 [1998] ). "The rights of an easement holder are measured by the purpose and character of the easement." The owner of the easement cannot materially increase the burden of the servient estate or impose new and additional burdens on the servient estate (Solow v. Liebman, 175 A.D.2d120, 121 [2nd Dept.1991] ). Further, "a landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder's right of passage is not impaired" (Lewis v. Young, 92 N.Y.2d 443, 449 [1998] ). This applies even to parties who share a common right of way (Boice v. Hirschbihl, 128 AD3d 1215 [3rd Dept.2015] ).
In this case, plaintiffs ask the Court to declare that the parties' common driveway easement area is to be kept free of vehicles, other objects and overgrown vegetation. Plaintiffs ask the Court to define "driveway area easement" to mean six feet on either side of the property boundary line except as where limited by structures and five feet around the perimeter of plaintiffs existing building encroachment for fire protection and maintenance. The easement which burdens defendant's property must be interpreted to allow any use of the easement which is reasonably necessary and convenient for the purpose for which it is created. However, given that plaintiffs have only a right to drive over that section of defendant's property that is part of the common driveway, they have no right to use any other part of defendant's property not necessary for ingress and egress. Plaintiffs' request that the Court to define "driveway area easement" to mean six feet on either side of the property boundary line except as where limited by structures and five feet around the perimeter of plaintiffs existing building encroachment for fire protection and maintenance materially changes the terms of the express easement and would impose new and additional burdens on the servient estate which is described as the stone driveway. This the Court cannot do.
Based on the above, the Court declares that plaintiffs have the right of ingress and egress over the common stone driveway unimpeded by vehicles or other objects or vegetation which would restrict their ability to drive into or out of the driveway.
Defendant's counsel to submit judgment.