Town of Addison v. Meeks

Nov 8, 1996
Versions:233 A.D.2d 843
649 N.Y.S.2d 274
1996 N.Y. App. Div. LEXIS 13302

Order and judgment unanimously affirmed without costs. Memorandum: Plaintiff, Town of Addison (Town), commenced this action against defendant, the owner of property abutting and underlying Miller Road, seeking permanently to enjoin defendant from interfering with the Town’s maintenance of, and the public’s travel over, Miller Road. Defendant appeals from an order and judgment granting a preliminary injunction and declaring that Miller Road has become a Town highway pursuant to Highway Law § 189, which provides that "[a]ll lands which shall have been used by the public as a highway for the period of ten years or more, shall be a highway, with the same force and effect as if it had been duly laid out and recorded as a highway”.

Contrary to defendant’s contention, the evidence supports the finding that Miller Road has become a Town highway by public use and maintenance. The record is replete with evidence of consistent and unrestricted use of the road for more than 10 years by the general public. Those users have included the residents and their families; the absentee landowners and their employees; public servants such as mail carriers, school bus drivers, and municipal work crews; patrons of defendant’s *844fruit stand; utility workers; and hunters, snowmobilers, and curiosity seekers. The Town’s witnesses described a daily steady stream of traffic, including vehicles and pedestrians (see, Matter of Jemzura v Mussision, 161 AD2d 851, 852, lv denied 76 NY2d 714, rearg denied 77 NY2d 874; Impastato v Village of Catskill, 55 AD2d 714, 715, affd on mem below 43 NY2d 888).

Similarly, the Town sustained its burden of showing a sufi ficient exercise of dominion over the road by its longstanding and unchallenged efforts to improve, repair, and maintain it on at least a yearly basis (see, Provencher v Town of Saranac, 168 AD2d 770; Stuart v Town of Wells, 161 AD2d 1073). Those efforts have included widening, grading, raking and spreading gravel on the road; widening, deepening, and cleaning the drainage ditches; installing a culvert; and mowing the weeds, cutting overhanging tree limbs, trimming the brush, plowing the snow, and sanding the road under icy conditions. (Appeal from Order and Judgment of Supreme Court, Steuben County, Purple, Jr., J.—Permanent Injunction.) Present—Denman, P. J., Lawton, Wesley, Callahan and Balio, JJ.