Neighborly Disputes

Our legal periodicals and reports showcase the headline grabbing disputes involving mass torts, fraudulent loans and other actions and proceedings affecting the lives and finances of major institutions and thousands of people.  Our Courts also regularly and routinely resolve real property disputes between neighbors.  Five recent decisions are illustrative.

Schabel v. Stillwell, 2016 NY Slip Op 31963(U), Sup. Ct., Suffolk Co., Farneti, J. (July 8, 2016)

The Court outlined the facts:

Plaintiffs Glenn and Anita Schabel commenced this action to recover damages for injury to real property located at 37 Weinmann Boulevard in Melville, New York. Plaintiffs allege that their neighbors to the east, defendants Richard Douglas Stillwell and Carla J. Mesquita, who own the real property known as 29 Springs Drive in Melville, New York, illegally removed a number of large trees, shrubs, and wooded brush from the hillside above plaintiffs’ property, and illegally re-graded the higher property causing erosion, storm water runoff and flooding of the lower property. Plaintiffs allege private nuisance, negligence and “per se liable” against defendants Stillwell and Mesquita.  Glenn G. Schabel and Anita Schabel also allege defendant Town of Huntington caused damage to their property by improper drainage on Springs Drive in Melville, New York[.]

The pending motions:

Plaintiffs now move for partial summary judgment as to liability as against all defendants. In support of the motion, plaintiffs submit, among other things, the pleadings, affidavits of Glenn G. Schabel and Richard W. Gibney, a registered landscape architect and certified arborist, various photographs, plea minutes in the People of the State of New York v. Richard D. Stillwell…certified meteorological records, various estimates, and a letter from Liberty Mutual dated August 10, 2012.

Plaintiff’s prima facie case:

Plaintiffs have established their prima facie entitlement to summary judgment in their favor against defendant Stillwell, but not Mesquita or the Town of Huntington. Plaintiffs’ submissions show that defendant Richard Stillwell pled guilty to and was convicted on April 16. 2014, in the Third District Court of Huntington, of illegally clearing and re-grading his property and causing debris to flow onto plaintiffs’ property. More specifically, Stillwell pled guilty to violating Huntington Town Code Chapter 87 § 84, which provides:

It shall be unlawful to regrade, alter or change the contour or topography of any land, or to fill depressions or excavate land including hillside areas, without a grading permit having been issued by the Department of Engineering Services.  In no event shall the Department issue a grading permit which will result in a final grade greater than one on three.

[Stillwell] also pled guilty to violating Huntington Town Code Chapter 186 § 8A, which provides:

It shall be unlawful for any person or business entity to cause, permit or allow the removal, destruction, or substantial alteration of any landmark tree, large tree, medium tree or more than three small trees or woodland, within a one year period, without first obtaining a permit from the Department.

Finally, defendant Stillwell pled guilty to violating Huntington Town Code Chapter 133 § IC, which provides:

It shall be unlawful for any person or business entity to cause, suffer, permit or allow an accumulation of sand, gravel, cinders, topsoil, mud, earth, vegetation or other material to be located, placed or deposited in such a manner so as to enable the material to flow, drift, discharge or stream onto any public street, highway, roadway, sidewalk, drain, gutter, right-of-way, easement or other public place or public improvement, or onto any private land within the Town of Huntington.

The application of collateral estoppel:

Collateral estoppel applies, as the issues are identical and Stillwell had a full and fair opportunity to contest the criminal proceedings.  Thus, he is precluded from re-litigating the same issues in a civil action…Additionally, plaintiffs’ expert witness, Richard W. Gibney, a New York State registered landscape architect and ISA certified arborist, opines in an affidavit:

Your upland neighbor’s actions to raise the grade and clear the previously existing gentle slope of trees and vegetation exposed the soil and de-stabilized the newly formed steep slope making it vulnerable to concentrated storm flows during extreme events as occurred on August 10, 2012 and the days following, resulting in a significant debris-filled mudslide onto your property and pool.

[D]efendant Stillwell has not raised a triable issue of fact. Stillwell admits that he pled guilty “in an effort to avoid a protracted legal battle.”…Here, Stillwell was represented by counsel in the local District Court, knew at the time of his plea that the civil matter was pending, plead guilty to a total of $2,100.00 in fines, and does not challenge the voluntariness of his guilty pleas.  Thus, Stillwell had a full and fair opportunity in the criminal proceeding to litigate the issues herein.  Accordingly, collateral estoppel applies.

The admissions against interest:

Even if collateral estoppel did not apply, Stillwell’s admissions in his deposition testimony that he removed “like five trees.” growth and bushes below his deck, and re-graded the property, all without permits, establishes plaintiffs’ entitlement to summary judgment, especially when coupled with Glenn Schabel’s deposition testimony that the damage to his property occurred 10 days after the re-grading and there was never a problem with storm water run-off in the previous 16 years.  Additionally, upon seeing the damage from August 10, 2012, Stillwell testified he offered “to have it fixed.”  Moreover, plaintiffs’ expert’s affidavit establishes Stillwell’s liability on each of plaintiffs’ three cause of action, as the expert opines the cause of plaintiffs’ property damages was the upland neighbors’ actions in re-grading the property.

And rejection of the “act of God” defense:

Stillwell’s argument that the alleged damage was caused by an act of God is without merit.  “If the loss or injury happen in any way through the agency of man, it cannot be considered the act of God; nor even if the act or negligence of man contributes to bring or leave the goods of the carrier under the operation of natural causes that work their injury, is he excused.  In short, to excuse the carrier the ‘act of God’, or vis divina, must be the sole and immediate cause of the injury.  If there by any co-operation of man, or any admixture of human means, the injury is not, in a legal sense, the act of God”…A defendant’s conduct can be excused when the storm was an act of God, and the resulting damage, under the particular circumstances, could not have been prevented by human care, skill, and foresight…Here, Stillwell’s admitted acts, coupled with plaintiffs’ expert’s affidavit, establish plaintiffs’ entitlement to summary judgment on the issue of liability[.]

Zimmerman v. Fredericks, 2015 NY Slip Op 31991(U), City Court of Rye, West. Co., Latwin, J. (July 29, 2015)

The Court summarized the facts:

This is a small claims action between neighbors. Plaintiffs are a young couple who fairly recently purchased their home in Rye Brook. Their neighbors, defendants, are an elderly couple, blessed with the badges of age – declining mental states and physical limitations. The parties’ properties are situated along Blind Brook – a brook that runs from the Westchester County Airport, south through the town of Harrison, the Village of Rye Brook and the City of Rye until it flows into Milton Harbor and Long Island Sound. Plaintiffs complain that defendants maintained their property in such a way as to attract rodents, specifically by allowing the build-up of domesticated pet foods and trash, causing infestation of plaintiffs’ property and allowing a tree near the property line to overhand plaintiffs’ property. For these things, plaintiff seeks recovery of their pest control expenses and the expenses of trimming the tree.

The testimony at trial:

At the trial, Mr. Zimmerman and defendants’ son testified. It was conceded that the tree in question stood on defendants’ property near the property boundary and that limbs overhung plaintiffs’ property. Plaintiff said he trimmed only the limbs that were over his property. Defendants argue that plaintiff cut off portions of limbs on defendants’ side of the property line. There was no proof offered of any actual harm or any imminent danger of actual harm to the plaintiffs or the plaintiffs’ property by reason of the overhanging branches. The tree still stands alive almost two years after plaintiffs trimmed it.

The applicable law as to animals “wild by nature”:

The law classifies animals as “wild or ferae naturae” and “domestic or domitae naturae.” The former includes animals that are wild by nature and, not having been subjected to confinement or control by man, live in a natural state. New York does not recognize a common-law negligence cause of action to recover damages for injuries caused by a domestic animal. Nor is there strict liability except upon a showing that the owner knew of the animal’s vicious propensities[.]

Rats are medium-sized, long-tailed rodents. Rats are opportunistic survivors and often live with and near humans. Some rats are kept as pets. Notably, rats are often bred and kept as research animals. But mostly, rats are considered deadly pests – long been held up as the chief villain in the spread of the Bubonic Plague.  Here, there was no evidence or suggestion that defendants owned or kept rats either as pests or for laboratory research, nor exercised any dominion over them. The rats here appear to be wild animals.

Rats are ubiquitous. Indeed, the only rat-free continent is Antarctica, due to its hostile climate which is too severe for rat survival, and its lack of human habitation to provide buildings to shelter them from the weather. The New York City metropolitan area has a long and colorful history of rats. The city says there is no reliable measure of the rat population, despite many past claims to the contrary. A 1949 article in The New York Times, detailing Mayor William O’Dwyer’s “war on rodents,” placed the estimate at 15 million. A more recent rule of thumb held that there was a rat for every resident, though research suggests this figure overstates the number by about six million[.]

The area adjacent to Blind Brook is a haven for small animals. The brook provides a ready source of water for the animals and plants living nearby.  This creates a food rich environment for all sorts of animals. Add to this natural environment, the plentiful food and shelter offered by humans living in the suburban environment. The combined natural and human-provided environment makes the vicinity of Blind Brook a utopia.

The applicable law as to encroaching trees:

Since the trees in this case are not poisonous or noxious in their nature, they are not a nuisance per se, in such a sense as to sustain an action for relief…Where a tree is located so near the line of an adjoining landowner that the branches overhang, the adjoining landowner may resort to self-help in the first instance, to cut off overhanging branches…The right to remove overhanging branches does not depend upon any title in the branches or limbs themselves where the base of the tree is upon the adjoining land.

The right to self-help extends to ordinary trimming and clipping, where this burden is not unreasonable, since the branches are readily visible and easily cut. Permissible self-help does not extend to the destruction or injury to the main support systems of the tree; nor does it extend past the property line.

And the claims for trespass and nuisance:

In order for the plaintiffs to prevail in an action in trespass their burden extends beyond proof of an invasion of his right to exclusive possession of his land to proof that such invasion or intrusion is the result of an act either intentionally done or so negligently done that such intent will be presumed. The trespass may not be based on a mere nonfeasance or an omission to perform a duty…Here, there is no proof whatsoever of an intentional intrusion or that defendants were even aware of tree’s intrusion prior to notification by plaintiff of the alleged damages.

In order to sustain a cause of action for nuisance with regard to trees not noxious, poisonous, decayed, or dangerously unsound, a plaintiff must establish that the overhanging branches or encroaching roots are causing “sensible damage” i.e., damage not simply nominal in form but rather damage “a sensible person if subjected to…would find injurious”…Otherwise, plaintiff’s remedy is limited to self-help – the precise remedy plaintiffs’ chose.

Most of plaintiffs’ evidence consisted of records of the Village of Rye Brook’s Building Department. While these documents refer to the risk of rat infestation, none of them identifies the defendants’ property as being the source of the rats that sojourned on plaintiffs’ property. Thus, even if they were all admitted into evidence, none of the documents establish the critical link that might create some liability on the part of the defendants. The Court is mindful of the relaxed rules of evidence in small claims proceedings, but given the inability to cross examine critical eyewitnesses and the missing link in the evidence tying the rats to the defendants, the Court cannot fully credit plaintiffs’ documentary evidence so much as to establish liability of the defendants.

Concluding that:

Providing the parties with substantial justice according to the rules and principles of substantive law…and under a fair interpretation of the evidence…with this Court having had the opportunity to observe and evaluate the testimony and demeanor of the witnesses and to evaluate the credibility of the witnesses…the Court finds that plaintiffs have no claim for damages[.]

With the admonition that:

This case should have never reached the Court. In the spirit of neighborliness, especially given the defendants’ age and infirmity, plaintiff should have offered to help the defendants resolve the issues. Instead, plaintiffs called the cops [the Building Inspector] on them. The defendants’ son also bears some criticism. He should have been aware of the condition of his parents’ property and taken steps to reduce the trash, excess pet food and rats on the premises. It may be time for the defendants to seek alternate living arrangements since they appear to be no longer capable of managing to live independently in a single family residence. A little more caring and neighborly love might have helped to resolve all the issues.

Martin v. Robins, Sup Ct., Suffolk Co., 2016 NY Slip Op 31879(U), Gazillo, J. (August 9, 2016)

The Court summarized the complaint:

[P]laintiff’s complaint [sets] forth six causes of action: 1) a demand for declaratory and injunctive relief regarding the validity and extent of an easement; 2) prima facie tort — specifically, the failure to abide by a court order; 3) and 4) two claims of nuisance (the second of the two or “Fourth” cause of action, has since been withdrawn); 5) damages; 6) punitive damages.

The stipulated facts:

At the beginning of the trial, there were a number of stipulations, viz,

1) By easement dated February 13, 1969, defendant’s predecessor in his chain of title granted plaintiff’s predecessor in title an easement for ingress and egress over the defendant’s driveway. That easement provides:

“That the party of the first part . . . does hereby remise, release and forever quitclaim unto the party of the second part, her heirs and assigns, a right to use a driveway jointly with the party of the first part, his heirs and assigns, for all ordinary purposes of ingress and egress, over the same, leading from Cedar Street on the northeasterly side of premises of the party of the second part situate in the Town of East Hampton, Suffolk County, New York and running southwesterly therefrom along the southeasterly side of the premises of the party of the first part adjoining said premises of the party of the second part, and over an existing driveway, said easement being limited to a width of 15 feet.”

2) Both properties are contiguous.

3) Previously, it had been stipulated that there was no need to call a representative for purposes of authenticating aerial maps from Geo-Maps as long as the maps are accompanied by proper Affidavit of Authenticity from Geo-Maps or Aerial Image Resources.

4) Previously, it had also been stipulated that neither plaintiff nor the defendant, their agents, representatives or counsel will designate, call or otherwise use David L. Saskas, LS, as an expert witness in this trial. Neither party, however, was precluded from calling Saskas as a fact witness in the trial. (There was, however, an on-going controversy which accompanied this stipulation: the question of whether his testimonial evidence would be classified as that of a “fact” or an “expert” witness and thereby precluded by the stipulation. After arguments by both sides, the determination of the issue was reserved.)

Plaintiff’s testimony:

Martin, the plaintiff, testified that he resides at the subject location, 129 Cedar Street. In August of 2003, he purchased it with Jim Sheehan. In 2005, he bought out Sheehan and is now the sole owner. He has three pre-teen daughters who reside with him, and he has been married for three years. He also has a home in Montclair, New Jersey where the children attend school. Last year he spent weekends, Christmas, and the summer at his Cedar Street home. From 2006 to 2008, it was his primary residence.

When he purchased the property he was aware of the easement. It was his understanding that it provided him access to his house for entire length of his property from Cedar Street to the rear property line or border it shared with Cedar Lawn Cemetery. Its width is 15 feet along the property line with his neighbor, the defendant Robins, and its pathway is located on Robins’ property. Both parties’ properties have the same rear boundary — again, the cemetery.

After the purchase in 2003, Martin would drive the length of driveway/property line (hereinafter, “the driveway”) and park at the rear. He did this every time he was there for the first year and a half — which was mainly on the weekends. Parking at the rear required him to drive to the end of the driveway and then turn left onto the rear of his property. This ended one day when Robins blocked his path midway with vehicles, a fence post, and building materials; Robins had started to install a fence post halfway up the driveway. He asked Robins to please not do that, adding that he would take legal action if it was continued. Robins replied that Martin had no right to use the entire driveway.

He had first met Robins on August 14, 2003, the day of the closing. Robins said, “You stole my house,” and that the previous owner had promised she would sell it to him. Robins indicated he had given the prior owner a contract. Robins and Martin next spoke a few weeks later. Robins said he was a contractor and had plans for a wall across the front of the property to abate street noise; Martin opted against it at that time. Shortly thereafter Robins came over with a bottle of wine and four pasta bowls. Martin said he would not accept the bowls if they were part of an attempt to purchase the easement; Martin accepted them when Robins denied that had been his purpose.

He stated that Robins has three access points to his property, one in the front of the house, one in the middle of his property and a third at the barn/garage at the rear. They are somewhat equidistant from each other and across from his three access points. In 2004, Robins would park a car in the middle of the driveway just behind the Robins’ pool cabana and leave. As a result, Martin was only able to access the middle driving area but not beyond. Robins also blocked further access with vehicles, containers, construction materials. Martin added that he was unable to access the back area since this court’s September 22, 2004 temporary restraining order and its resulting order of May 12, 2005. In essence and pending the further order of the court, those orders found that Robins was interfering with Martin’s access to his property from the entire length of the driveway and ordered Robins to remove any obstacles. Martin indicated that “to this day” Robins hadn’t removed the obstacles and there was a “blockade” of steel pipes and beams. Martin identified photographs depicting those and other obstructions he claims “completely block [his] access to [his] property.” He reviewed other photographs which depicted fenceposts as well as the rear of Robins’ property and the vehicles, materials, and gateposts stored there. Martin claimed this made it impossible to enter his property at its rear or back end. He also indicated that Robins had stored construction material against his property line to annoy him. From October of 2004 until the present, Martin has had no access rear of property via the driveway. The materials were not there when he moved in, they were placed there after the temporary restraining order. Since that time those obstacles have limited the number of cars he could have on his property and obstructed the passage of construction vehicles and machinery for the installation of a cesspool and pool house.

The cross-examination:

[Martin] indicated that the trucks and construction materials which are displayed in photographs as stored at the rear of Robins’ property were on a surface improved with pavers, but he stated they are “within the 15 feet of the easement.” He identified a fence at the rear of Robins property and indicated the fence which separates their properties and the cemetery; he also has a fence for the pool area.

Returning to the discussion of the pavers, he stated they were there when he purchased the property; he also described the location of the pavers, and that they are close “if not touch” his property. The storage in this area began in 2004 and was limited to the area with the pavers. It is his position that he has the right to access where the construction material is, as well as any point along the boundary between the parties’ two properties. He indicated there were three access points. The first access point is in front of house. Crushed gravel and Belgian block have been placed there but doesn’t believe its size has been expanded. He usually parks two cars there; he has six. There is no claim that Robins has obstructed the first access point.

Although Martin had driven past it for several years prior to the purchase, the first time he was on the property was in early April or May 2003. At that time it was owned by Suzanne Bennett and that first access point was in existence. The second access point is behind house; it has a parking area 25 feet deep and is wide enough to tightly fit three cars. He has reduced that area with plantings.

His entire plot is approximately 120 to 125 feet wide; it is rectangular. The parties stipulated that the “street side” width of the property is 100.00 feet while the rear or cemetery side is 100.08 feet. The property line between the parties’ properties runs 358.69 feet; the other side is 354.62 feet. The property is level.

He added that he wanted to bring in trucks to install and service a septic system and build a pool house and pool. The contractors did so by access through the “middle” access point and they could not have accessed pool area from other access areas without damage to the property.

He didn’t have a survey completed when first purchased property and the first survey was ordered when selecting a location for the pool.

Between his house and the street there is a water runoff system or cistern which takes up about 12 feet and runs from the corner of his property and Robins’. There is a historically-protected tree at the other corner. The existing front parking area does not fill the entire front yard and has room for expansion. There is a lawn behind the house. The pool fence extends to this second parking area. He doesn’t know if “legally” there is room for more parking on his land. There is a fence about two-thirds down the property line from the cemetery and perpendicular to the property line; it was there when he purchased the property. When he moved in, the rear of property was an overgrown unimproved area; he didn’t recall if there was a path to the house. As to the gate posts he had described on his direct testimony, there is no gate, just posts.

Testimony on re-direct and re-cross:

[Martin] stated he had seen a gate; when the defendant was installing the gate posts, he had it laid out on the lawn. As to his first parking access point (in the front of his house), it is the same size and location as Robins’. As to the second, Robins’ is slightly smaller while Robins’ third is significantly larger. If the obstructions on the driveway were removed he could turn into his back parking area without moving the pool fence.

[Martin] stated that when he purchased the home there had been a parking area on the back of his property near where the pavers are. There is a cutout area near pavers; there is a fence there which may have been installed on the property line.

Finally, [Martin] he stated that the pool fence is properly placed where he intended it to be.

The testimony of plaintiff’s expert:

[Edward] Dilport testified as an expert, specifically as a photogrammetrist. He has been in this field for 31 years and initially received his training and experience while serving four years with the United States Air Force. He attended an Armed Forces intelligence course and was trained for a year in aerial photo interpretation and related chores including using photographs to produce maps and graphics. His title or MOS was as a target intelligence specialist. In 1988 he entered into his civilian career, beginning with Golden Aerial Services. That firm interprets aerial photographs and converts them into maps and graphics and produces “orthophotos” or photographic maps. This process essentially “flattens the subject” and thereby assists in ascertaining more precise measurements of distances.

Focusing on the matter at bar, he indicated that he had reviewed a number of photographs of the subject properties which were in evidence, beginning with the earliest, one dated April 1, 1969. He indicated that it was a “poor scan” and very grainy; it was also during “leaf-on conditions,” or shadowy due to a “canopy” or leaves still on the trees. Focusing on the back end of the properties, he noted that the east side of the driveway was obscured and it did not show where the end of the driveway was. Another 1969 photo was “leaf-off” and clearly portrayed the driveway, including an area obscured in the previous photo. The “leaf-on” photo did not reveal an auto on the plaintiff’s property but the other showed one which “in whole or in part” was. He indicated that he was “100 percent confident” that it was an automobile. Furthermore, he projected that to get to that location the car had to travel down the driveway. A 1976 “leaf-off” photo but at a different scale showed the driveway. He stated that there was a boat on Robins’ property and an auto in the same location as the prior vehicles — again in whole or in part on Martin’s property. He stated this was definitely a parking area (there was a tone change in the surrounding area) and he reiterated his opinion that method for the vehicle to arrive at that location was to travel down the driveway. Another “leaf off” photo, this from 1978, showed a car in the same parking space and another on the defendant’s property. Once again he opined that the both autos had to “traverse down the driveway.” After viewing a 1984 “leaf-off” photo he also concluded that the parking area’s contrasting color vis-a-vis the surrounding area was caused by repeated traffic. After his review of all of the photos — those from 1969, ‘76, ‘78 and ‘84 — he opined that the use of the driveway was consistent through those years.

On cross-examination, he indicated the photos are — other than when they were taken — of the same area. He stated that he could not indicate the boundary between the two properties. He identified what might have been a single car. He added that there is no way to determine who parked cars on the properties. He also opined that the area in front of Martin’s house was used as a parking area in the 1976 photo; this did not appear in the 1969 photo but the one behind the house did. A structure at the rear of the Robins’ property had a boat nearby. He stated that the car in the parking area was “roughly” fifty feet from the structure and it was two hundred feet from the car to Martin’s house; other than the driveway, there was no visible pathway between the two. As to any auto in the photo, there was no way to determine if it was usable or junk. Using the scale on a 1978 photo, he estimated the distance from the edge of a car in the parking area to the structure at the rear of the Robins’ property to be “thirty-five, forty feet,” and “180 feet, roughly” to the Martin house with no path visible other than the driveway. Lastly, a 1984 photo indicated a fence might have been added since 1978 and that the driveway appeared to veer “ever so slightly” away from the Martin property.

During his re-direct examination he indicated that while there were no pathways visible in the photos there may or may not have been a path. Using an inlayed surveyed/photo of the properties, he indicated that the car appeared to be substantially outside of Robins’ property.

The surveyor’s testimony:

[Amelia] Mac Donald testified that she has been a land surveyor for 20 years, licensed and registered in New York, Connecticut, and North Carolina. She was schooled and apprenticed in her profession, having attended SUNY Buffalo and Suffolk County Community College. For purposes of the trial she was deemed an expert in land surveying.

Prior to the trial she had reviewed the properties’ chains of title, the subject easement, its right to use the driveway. She stated in particular that the easement is not a driveway but the right to access. She also stated that the easement ran over an existing driveway but did not limit specific points of ingress and egress. She opined that it “was written as general in nature in providing access from the street to the property.” The only written restriction it contained was its width: fifteen feet and for “ordinary” use. A review of prior surveys, the chains of title, and aerial photographs indicated to her that the driveway is in substantially same location.

During her cross-examination she stated that the easement’s words for “for all ordinary purposes” of ingress and egress are restrictive. She personally visited the property and saw a masonry driveway but was unable identify any such driveway on the photographic evidence nor testify as to when or for what purpose it might have been installed. Lastly, she confirmed that Suzanne Bennett owned the property from May 8, 1970 to August 13, 2003. Thereafter, she also confirmed that she was unable to identify pavers at rear of driveway[.]

Defendant’s testimony:

The defendant’s case began with Robins. He identified the July 11, 1988, deed to his property and the Certificate of Occupancy. He described the property’s condition when he had purchased it and that there was a dirt and gravel driveway, and halfway or so down it there was a turnoff. The driveway veered towards the barn at the rear with a small clearing for parking. Besides the midway turnoff there was one in front of the house (now Martin’s house); both turnoffs led to the now-Martin property. At the time of the purchase, there was a “drive or whatever” that veered toward the barn with a seashell-covered parking area. After he occupied the dwelling he made alterations. He cleaned up the barn and made structural improvements including siding. In 1988 or 1989, he installed pavers. At that time up to the present he has used the property for his “construction/contracting/cabinet/carpentry business” purposes. In 1994 or 1995 he stored materials such as lumber and other items on the now-Martin then-Bennett property. Bennett was still the owner and she permitted it, but in 2003 when she was selling the property she asked him to remove the material and he did. When Martin purchased the…property, it been essentially unchanged: a row a shrubs had been added and the wooded area and the rear was more overgrown while the fence at rear along property line was still there. In 2003 there were two locations to drive onto defendant’s property, one in front of the house, one to the house’s rear. When he installed the pavers it did not change the driveway or its location and since then he has occasionally filled-in potholes and did some grading. As to his house, he began to expand it and built the pool house, pool and garage. He never altered the access points on Martin’s property but Martin did, widening both the front and middle points. There had never been a rear access point beyond the midway opening in all the time he was there. He also reviewed somewhat recent photos of the driveway and his pool and pool house. He indicated that he had stored framing lumber, PVC pipe and masonry on Bennett’s property and then moved it onto the paved area of his property.

Testimony on cross-examination and redirect:

[Robins] reiterated that in 2003 he had moved and removed construction material on his area but what presently remains there is not entirely the same items as some is old and some has been added. In 2006 the barn existed but it was a storage space and not a work area. He also has storage bins on his property. He identified a photo which shows his truck parked at the end of the driveway — the same place as a white van and a blue truck shown in a 2008 photo. He also identified recent photos of a pile of metal pipe and copper which were awaiting recycling as well as pallets, metal pipes, garbage, wood, framing lumber, plywood and CCA lumber — all on his property. If the area were clear of material he could park ten to twelve vehicles there; he presently…parks two business vehicles there. He detailed how Martin’s use of the entire driveway would impact on his use of his property, specifically how turning his vehicles would be difficult, but it would not impact on his use of the pool. He indicated that he stores construction vehicles, materials, bins and a dumpster on his property and runs his business there. He concluded by stating that he lives in Amagansett, not at the location.

On re-direct examination he stated that he has a building permit for the house.

The deposition of a neighbor:

[Suzanne] Bennett’s deposition was read into the record. She had lived more often than not at 129 Cedar Street. Between 1970 and sometime in the early 1980’s she was only there on weekends. Behind the house there had been a free-standing garage which fit one vehicle; it faced the driveway. She would drive onto driveway to get into the garage. She knew of the easement and that when Wilbur Hamilton lived in 131 Cedar Street he had used the barn as part of his plumbing business. The backyard had grass, a fence and behind which was “just left wild.” The fence was wooden, had vertical slats and there as more property beyond it up to the cemetery. The fence was perpendicular to the property line and more or less the width of her property. After Robins moved in, he put in a pool and a pool house. He stored some material on his property and some at the rear of her property. She had never discussed the easement with anybody. Robins may have paved driveway back by the barn. The first access point in front of her house was not there when she purchased it; she constructed it. She had reduced the size of the parking area at the second access point. During the entire 33 years she owned the property there were never any other access points to her property other than the two in front of and to the immediate rear of the house. She may have driven to rear of property; it was not something she made a habit of. She also knew Hamilton had “stuff” in the barn and had trucks there.

The testimony of the surveyor:

[Howard] Young testified as an expert in land surveying. He prepared a survey of the Robins’ property and overlaid it over certain aerial photographs. His surveys are prepared using aerial, satellite controlled photographs or “survey grade GPS.” The end result or product is topographical or surface earth features on the ground which are “as accurate as you can see with the eye” or as portrayed within the survey. Employing this method, the exact location of the property lines are revealed but no vehicle was shown in the parking area in the 1969 or 1976 photographs. The exhibits, however, do depict a driveway that was similar over time and never changed in its location. The driveway does not totally parallel the property: at the rear it veers inward toward the rear storage area or barn. The “parking area” appears to be within the Robins property.

During his cross examination it was indicated that the earlier 1969 photo was “leaf-on” while another was “leaf-off.” He disputed whether the path after the brick area could be called a “driveway.” When shown other photographs he indicated he saw what “looks like a car” but it could be other things. When questioned by the court, he stated that the object had “a very small portion . . . right on the property line” and the majority of it was on the Martin property.

The testimony of another neighbor:

[Peggy] Hammond, indicated that she knows Robins ever since he moved to 139 Cedar Street. He lives across the street from her and Martin is a “little to the left.” She first met him “in the hallway” before she testified. She had lived in her house since 1968. Her home was built in 1910; it’s a large, three-story shingled farmhouse. She has walked on both parties’ properties since her children were young. From the from second and third floors of her house she has been able to see all of the properties all the way back to the cemetery. On Robins’ property there had been an ugly brick commercial plumbing building with a half-circle driveway to its front. Behind the building were brambles which overtook the entire rear portion the property. Martin’s property had a ranch house. In 1968, a dirt driveway branched into the half-circled driveway in front of the plumbing store and then went to the back of the “Martin” house. From Cedar Street it went behind the house where there were two parking spots. There were no other access points on the “Martin” side. There was a field beyond that second access point. After the prior property owners divorced, they split the property in two. After that time, there was still only one parking area behind the house on Martin’s side. The property to the rear of that house became progressively more overgrown and it became hard to see the cemetery. During the 1970’s there was a shed on the “Martin” property behind the house and between the shed and cemetery there were brambles and trees. Nothing changed when Suzanne Bennett owned property other than perhaps putting up a fence.

Plaintiff’s rebuttal testimony:

[P]laintiff’s offered portions of the Bennett deposition as rebuttal. As noted therein, when she purchased her property she understood she had an easement to use driveway. She had seen a legal document to that effect and she never relinquished her right to utilize her right to use the driveway. When she purchased the property the driveway went the length of the property to the cemetery. No one ever prevented her from using any part of the driveway. The driveway was already in existence when she purchased the property and its configuration never changed.

The issue before the Court:

As to those issues and law which are more particular to the matter at bar, the legal analysis begins with noting that there is no argument that an easement exists and it existed when the plaintiff took the property…The focus of the dispute, however, is the interpretation of that grant. The plaintiff’s argument, is, in essence, that for various reasons he is entitled to the full use of the so-called “driveway.” The defendant claims it is less generous and the use restricted. The easement’s literal language, however, is not sufficiently specific to off-handedly dismiss either points of view, and thus the litigation.

The Court’s analysis of the testimony:

[P]laintiff maintains that the April 1, 1969 photograph displays a vehicle he claims was parked on his property. That evidence, he contends, demonstrates the prior use of that location as an access point to his property, i.e., a parking spot. While that evidence and argument have appeal, they are not conclusive. First and foremost, that photograph is after the February 13, 1969 date of the easement. As such, any “prior use” argument is therefore not totally sacrosanct nor completely beyond any dispute. Secondarily, Dilport — the expert — could not determine whether the vehicle parked was operable or “junk” stored there. Moreover, Young’s testimony suggests that the location may not have been on what is now Martin’s property. Perhaps also neutralizing the weight of that photo — or any photo — is the fact that the ownership of any such vehicle has not been established. It is therefore as equally likely that any vehicle parked there was owned by Robins or his grantor (or anyone else). Additionally, the vehicle is at the rear-most portion of the property, well beyond the middle parking area, and furthest from the now-Martin house. Why someone would park so far away from that house when the middle access parking was closer and more reasonable is contrary to one’s expectations. On the other hand, a more logical explanation can be obtained by coupling that vehicle’s proximity to the defendant’s rear barn or shop: the nexus between the two is more obvious, more compatible, and more logical. As such, the photos supply a conclusion which readily but equally supports the defendant’s contentions. Further supportive of a determination that the questioned car/parking area is for the benefit of the defendant’s property is the manner in which (as testified by Dilport, Young, and Robins) that the driveway veered towards the barn, i.e., inward to Robins’ property.

“[T]the only question that remains is what was the location and use of the Driveway (sic) as it existed at the time of the grant.” First of all, and as indicated above, the use of the driveway at the time of the grant was, quite clearly, access to the barn at the rear of Robins’ property. Among other indications of that is the manner in which it veers towards the barn.

[T]he circumstances existing at the time of the grant can supply the intent of the grantor and grantee. Apart from the direction of the driveway to the barn, it is also clear from multiple witnesses (i.e., Hammond, Bennett, and Robins) that there was never a rear access point, and only one “parking area” behind the now-Martin house. It is also evident that when the Hamiltons divorced and split the property, that was the only parking area on the wife’s (now Martin’s) side and — without use of a portion of the driveway — it was inaccessible by a vehicle. Prudence would, therefore, require her to obtain access to her parking area — the logical solution being an easement granting her access to the area behind her home. It is also clear from the uncontroverted testimony of various witnesses that at the time of the grant and for some time thereafter, the area between that middle point and the cemetery was “wild” and “overgrown.” Such conditions do not readily indicate that the motives of the parties would include concern for access to this unimproved and unattended (if not abandoned) area. To the contrary, vehicular access to that area would seem beyond their contemplation nor the wife’s need. Indeed, the subsequent owner, Bennett, did little to change the rear area, and while she indicated she may have driven the length of the driveway (although it was not her habit), there is no indication that she used it as a parking area. Moreover, even if, arguendo, she did so on an occasion or occasions, this would be consistent with neighborly relationship she shared with Robins as portrayed by the fact that she permitted him to store materials on her property (which he removed upon her request when she was marketing her property). Lastly, granting access to the middle parking spot — a parking area which unquestionably existed at that time — would be consistent with the purpose of the easement as indicated by the surveyor Mac Donald, viz, “for all ordinary purposes.” Ingress and egress to an existing but otherwise “landlocked” parking area would seem “ordinary” while such access to a virtually ignored area would not.

Concluding that:

In sum, therefore, the plaintiff hasn’t persuasively, much less sufficiently demonstrated that the easement should be extended beyond access to the middle parking area. Indeed, in the competition between the contentions of the plaintiff versus those of the defense, the plaintiff’s appears to be significantly less than likely in both fact and law.

*     *     *

Having failed by a preponderance of the evidence to demonstrate the merits of his complaint and any of its causes of action, the plaintiff’s complaint is dismissed in its entirety and the Court finds for the defendant.

Garson v. Tarmy, 2016 NY Slip 32233(U), Sup. Ct., Suffolk Co., Pitt, J. (November 2, 2016)[1]

Supreme Court summarized the action:

[P]laintiffs seek, inter alia, a declaration of the parties’ rights and obligations with respect to a “pedestrian walk way,” located in a residential subdivision on Sam’s Creek Road in Bridgehampton, New York and presumably intended to provide access to a body of water known as Sam’s Creek.

The geography:

Sam’s Creek Road is located proximate to Sam’s Creek, an arm of Mecox Bay in Bridgehampton, New York. More than forty years ago, a local developer created a subdivision, consisting of eleven lots. around Sam’s Creek Road. Seven of the lots were located directly on Sam’s Creek; the other four lots were separated from Sam’s Creek by Sam’s Creek Road or around the bend along the road. At or sometime after the time the subdivision was developed, an easement was filed that purported to reserve a five-foot “pedestrian walk way” between two of the lots fronting on Sam’s Creek (Lots 6 and 7) “reserved solely for the pedestrian use of owners of” the four outlying lots (Lots I, 2. 3. and 4 ).

The parties:

The plaintiffs and defendants The Trokel QPRT No. 1 and The Trokel QPRT No. 2 (“the Trokel Trusts”) are the owners, respectively, of 39 Sam’s Creek Road and 47 Sam’s Creek Road, the two lots (Lots 6 and 7) on which the walkway is situated.  It appears that the width of the walkway on each of those lots is 2 ½ feet. The owners of the four lots in the subdivision that do not front on Sam’s Creek (Lots 1, 2. 3, and 4) – and for whose benefit the walkway was presumably created – are defendants Barbara Tarmy and Gary B. Fradin (13 Sam’s Creek Road), defendant Alemarc, LLC (80 Sam’s Creek Road), defendant Alan Golub, as trustee of the Golub Family Bridgehampton Trust (91 Sam’s Creek Road), and defendants Stephen Greenberg and Sandra Greenberg ( 18 Sam’s Creek Road).

Plaintiffs’ position:

According to the plaintiffs, when they purchased their lot (Lot 6) in 1993, the walkway was an unused, barely-visible path that was protected by a 30-foot high canopy of mature, fully-grown trees.  The plaintiffs claim that on or about May 7, 2013, agents of Barbara Tarmy and Gary B. Fradin entered upon and needlessly and recklessly cleared the walkway, removing trees both within and without its borders, destroying the tree canopy, and creating a condition significantly beyond that required to accommodate a pedestrian walkway.

Defendants’ position:

Defendants Barbara Tarmy and Gary B. Fradin (Tarmy/Fradin), who purchased their lot (Lot 4) in 2002 and whose deed makes express reference to “the benefits of a pedestrian walkway as set forth in a deed * * * to Edrita Fried dated 11/13/72”…claim the right to clear the walkway to allow its unencumbered use and, further, that they performed no work which was not necessary to make the walkway usable. They also claim that prior to the “selective pruning and clearing of vegetation” which is the subject of the action, the walkway was densely vegetated and impassable on foot; apart from the vegetation, there was a fence constructed by the plaintiffs or their agents which obstructed use of the walkway.

Defendant Alemarc, LLC purchased its lot (Lot 2) in 2012 and claims, by virtue of its chain of title, to have the same right as the other outlying lot owners to use the full length and width of the walkway in perpetuity.

The causes of action set forth in the complaint:

The plaintiffs allege five causes of action in their second amended complaint: the first and second against all the defendants, and the third through fifth against Tarmy/Fradin only.  The first is for judgment declaring that the recorded documents purportedly creating the easement were ineffective to create an easement for the benefit of Lots 1, 2, 3, and 4; the second is for judgment declaring that the defendants do not have the right to clear the walkway, to remove or destroy trees outside the walkway, or to remove the tree canopy; the third is for injunctive relief preventing Tarmy/Fradin from clearing the walkway, removing or destroying trees outside the walkway, or removing the tree canopy; the fourth is for damages based on trespass; and the fifth is to recover treble damages for removal or destruction of trees under RPAPL 861.

Defendants’ counterclaims:

Tarmy/Fradin, in their answer, plead a single counterclaim for judgment declaring their right not only to improve and clear the walkway and make it passable but also to construct a dock at the waterfront terminus of the walkway, subject to their obtaining approp1iate permits.   Tarmy/Fradin also allege, as an affirmative defense, the plaintiffs’ failure to state a cause of action.

Alemarc similarly alleges in its answer a single counterclaim declaring that it is entitled to utilize the full length and width of the walkway in perpetuity and enjoining the plaintiffs and every person claiming under them from obstructing the walkway, as well as three affirmative defenses: the first, based on failure to state a cause of action, the second, that the plaintiffs’ claims are barred by the doctrines of laches, waiver, and estoppel, and the third, that the plaintiffs’ claims are barred by documentary evidence, including but not limited to the covenants and restrictions, the recorded instruments, and the subdivision map.

The basis of the Tarmy/Fradin motion for summary judgment:

In support of their motion, Tarmy/Fradin rely, in part, on the affidavits of Barbara Tarmy, Stephen Ospitale, Martin Hand, and Frederico Azevedo.  Based on those affidavits, it appears that in the spring of 2013, Tarmy/Fradin inquired of Ospitale, their caretaker, what would be involved in clearing the walkway. Ospitale obtained copies of the relevant deeds and contacted Hand, a surveyor, to stake out the area.  After the area was staked, Ospitale met with Azevedo, their landscaper. and specifically asked him to be careful about clearing the walkway so as not to remove any vegetation outside its borders. He also contacted Southampton Town officials to confirm that there would be no violation or any relevant laws if the walkway were cleared. According to Ospitale, be met with Michael Chih from the Town’s code enforcement office and Martin Shea from the Town’s conservation and environment office, and was advised by them that no permits would be necessary as long as no stumps were removed. He was also told by Michael Chih that the Town would notify the adjoining property owners by letter advising that the clearing work would be done and that the existing fence would have to be moved; although he never saw such a letter, he believes it must have been sent because the fence was moved out of the walkway before the clearing work commenced. Ospitale claims that he supervised and inspected the work, which took place in a single day, and that no trees, brush or other vegetation was cleared outside of the staked area. He acknowledges, however, that the work was never completed because Michael Chih appeared in response to a complaint while the clearing was in progress, and directed that the work be stopped[.]

The basis of plaintiffs’ cross-motion for summary judgment:

The plaintiffs, in support of their cross motion, submit, inter alia, the affidavit of Lance R. Pomerantz, an attorney “actively engaged in the practice of land title examination since 1979.”  It is his opinion, based on his examination of the real property records in the Office of the Suffolk County Clerk, that no “pedestrian walk way” was ever legally created and that the defendants, therefore, have never benefitted from any easement over the plaintiffs’ property.

*     *     *

The plaintiffs also submit the affidavit of Steven N. Rappaport, who states that although the plaintiffs were aware of the walkway when they bought their home, they never saw anyone use it from the time of purchase until May 2013; it was only after this action was commenced, moreover, that they discovered that the walkway was never properly recorded or created as an easement of record.  As to the proposed dock, the plaintiffs submit the affidavit of Timothy S. McCulley, an attorney practicing “in real property with a concentration in land use issues,” whose opinion it is that Tarmy/Fradin have no right to construct a dock at the foot of the walkway and that they will not be granted the required approvals to do so.  Finally, the plaintiffs contend that the Tarmy/Fradin motion should not be entertained before the plaintiffs are afforded an opportunity to depose Martin Hand, Steven Ospitale, Frederico Azevedo, and Martin Shea, all of whom have submitted affidavits in support of that motion.

The basis of Alemarc’s cross-motion:

Alemarc, in support of its motion, adopts and incorporates by reference the arguments made in the Tarmy/Fradin motion, claiming that it likewise has a “clear chain of title” with respect to the walkway and. in addition, that because the parties purchased with the knowledge and expectation of an easement, an easement by estoppel was created[.]

Finding that no valid easement existed:

Turning to the principal matter in dispute, the court finds as a matter of law that no valid easement exists over the subject 2 ½-foot-wide strip on the plaintiffs’ property.  The plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating that, at the time the easement was purportedly created, the owner of the servient lot (Lot 6) was Ross O. Runnels, Jr., and the owner of the dominant lots (Lots 2 and 4) was Ross O. Runnels. Jr., Walter R. Neville. and Greer Marechal Jr. Foundation, as tenants in common.  “For an easement by grant to be effective, the dominant and servient properties must have a common grantor”…Even assuming, then, that the April 14, 1972 deed validly served to “correct” the July 6, 1971 deed, as the defendants claim…that deed would not create a valid interest in favor of the owners of Lots 2 and 4.  In addition, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so-called “stranger to the deed”, does not create a valid interest in favor of that third party”…stated otherwise, a grantor may not reserve an easement other than for his or her benefit. Here, it is evident that Ross O. Runnels, Jr. did not purport to reserve an easement solely for his own benefit but rather for the benefit of all the co-tenant owners of Lots 2 and 4.  Consequently, any easement reserved to the owners of Lots 2 and 4 in the plaintiffs’ chain of title was ineffective to create an express easement in their favor.  The defendants, in opposition, failed to raise a triable issue of fact. That the grantor may have intended to create such an easement, as they claim, is immaterial…Nor do any of the various estoppel theories advanced by the defendants avail them.  “An easement by estoppel may arise if an owner of land, through specific representations, leads another to reasonably believe a permanent, alienable interest in real property has been created, and if in reliance on such representations, the other makes permanent or valuable improvements on the land…Here, the record is devoid of proof of any prior representations by the plaintiffs as to an existing easement. The defendants cite only an excerpt from the deposition transcript of Steven Rappaport, who testified that when Tarmy/Fradin purchased Lot 4, they asked whether there was a walkway, and he responded that no one had ever used it.  Even if Rappaport may be found to have expressed to Tanny/Fradin his belief as to the existence of an easement, the defendants have not shown that they relied on any such statement to their detriment; to the contrary, it appears that Tarmy/Fradin relied primarily, if not exclusively, on their belief that a valid easement had been created, as well as statements by Town of Southampton officials indicating that the clearing of trees would not violate any local ordinances.  As to the doctrine of judicial estoppel—which the defendants seek to invoke in order to prevent the plaintiffs, who initially pleaded the existence or an easement, from now denying its existence – the court finds it likewise inapplicable.  “That doctrine applies when a party has assumed a certain position in a prior legal proceeding and secured a favorable judgment therein, which thereby precludes that party from assuming a contrary position in another action simply because its interests have changed”…The doctrine does not apply here because the inconsistent positions have been asserted in the same action[.]

Concluding that:

Accordingly, the plaintiffs are entitled to the entry of judgment in their favor on their first, second, and third causes of action, and dismissing the defendants’ counterclaims, to the extent of (i) declaring that the recorded documents purporting to create the “pedestrian walk way” over Lots 6 and 7 were ineffective to create an easement for the benefit of the owners of Lots 1, 2, 3, and 4, (ii) declaring that the defendants have no right to clear, remove or destroy trees from, or remove the tree canopy over that portion of the walkway situated on the plaintiffs’ property, and (iii) enjoining Tarmy/Fradin from clearing, removing or destroying trees from, or removing the tree canopy over that portion of the walkway situated on the plaintiffs’ property.

The plaintiffs are also granted summary judgment on the issue of liability as to the their fourth and fifth causes of action, there being no dispute that Tarmy/Fradin or their agents entered upon the plaintiffs’ property and removed and destroyed trees thereon, all without the plaintiffs’ consent.  “Entering upon the land of another without permission, even if innocently or by mistake, constitutes trespass”…A defendant may be held for trespass even if it did not enter the plaintiff’s land; it is sufficient that the defendant caused or directed another person to enter…Any person who engages in, or causes another to engage in, the cutting, removing, injuring or destroying or the trees of another without the owner’s consent is liable for such conduct. Accordingly, the plaintiff is entitled to an assessment of the damages arising from both the trespass and the statutory violation.

Gibbs v. Porath, 2016 NY Slip Op 08271, App. Div. 3d Dept. (December 8, 2016)

The Appellate Division summarized the facts and prior proceedings:

This action was commenced in August 2010 to resolve a boundary line dispute between the owners of adjoining parcels located in the Town of Chateaugay, Franklin County. The disputed area of property included two man-made ponds that are referenced as the upper and lower ponds. Plaintiff alleged that defendants trespassed on his property and altered the upper pond and removed trees at the lower pond. After a nonjury trial in 2012, Supreme Court determined that plaintiff owned the disputed area — including the lower pond and part of the upper pond — and awarded him damages in excess of $40,000. On appeal, this Court affirmed Supreme Court’s determination with regard to the boundary line, but found that the damages award was improper because it failed to account for defendants’ partial ownership of the upper pond and did not exclude the area of the lower pond from the area that needed to be reforested…Upon remittal, Supreme Court determined that plaintiff was entitled to damages in the amount of $39,823.35 for the reforestation and restoration of .116 acres in the vicinity of the lower pond and $2,155.68 for 25% of the cost of the repair of the upper pond[.]

The issue and testimony upon remand:

We find ample support for Supreme Court’s assessment of damages with respect to the lower pond. As defined in our prior decision, the issue before the trial court was the cost to restore the area around the lower pond, excluding the area of the pond. Upon remittal, Herbert Boyce, a consulting forester with 28 years of experience, opined that, based upon his observation of the “cleared area around the [lower] pond, along the surveyed line” and knowledge of the type of trees that grew in the area surrounding the lower pond, .116 acres would require reforestation by planting 107 “red maple, white birch, white pine [and] white cedar” trees. Boyce explained that the acreage to be reforested was the area around the pond that had been cleared, but not the pond itself, which he calculated with a GPS to be an area of 625 square feet. Boyce further determined that the density for the restoration work was based on the US Forest Service Timber Management Field Book and chose the species of trees based on what trees grow there naturally.

And the determination of damages:

A plaintiff may claim damages for permanent injury to real property based on restoration costs for permanent injury…For defendants’ part, Lon Haverstock, an excavator that defendants retained to clear the lower pond, offered conflicting testimony with regard to the nature of the work that he performed and the character of the vegetation in and around the area. Defendants did not offer any alternative means for calculating or reducing plaintiff’s damages. Given the limited purpose of the second trial, we discern no error in Supreme Court’s determination to credit the assessment by plaintiff’s expert of the cost to restore the area surrounding the lower pond…However, we find that plaintiff’s damages for the repair of the lower pond should be based on Boyce’s 2012 cost estimate and, thus, it should be reduced to a total of $28,157.54[.]

Turning to the upper pond, upon remittal, plaintiff submitted testimony by Aaron Stark, an excavator with experience constructing ponds. Stark testified that he inspected the upper pond in 2015. He repeated his prior assessment that the upper pond needed a new spillway and liner and added that, since the first trial, there had been additional erosion that needed repair. Nonetheless, Stark testified that the cost of the work would total $8,622.72, basically the same amount as in the first trial[.]

Lessons learned:

Superficially simple disputes between neighbors often lead to complicated and protracted litigation involving numerous parties, witnesses and experts, on the one hand, and important (and sometimes ancient) legal precedents, on the other.

[1] Smith, Gambrell & Russell, LLP represented the plaintiffs in this action.

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