~ EASEMENT HOLDER PERMITTED TO REBUILD BRIDGE IN RIGHT-OF-WAY EASEMENT ~
In a recently decided case, Navin v. Mosquera (Appellate Division, Third Department, decided February 2, 2006) the Appellate Court upheld a lower court decision which permitted the user of a right-of-way easement to rebuild a dilapidated bridge in a right-of-way granted them despite an extended period of non-use caused by the unsafe condition of the bridge. The decision of the Appellate Court is as follows:
"MEMORANDUM AND ORDER
The parties own adjoining land in the Town of Saranac, Clinton County. Both parties' properties were originally part of the same parcel owned by a common grantor. Defendants' property does not have any public road frontage. When defendants purchased their property, their deed granted theerved in the tax foreclosure action because a fraudulently executed deed created record title in the name of another person. The court dismissed the claim of the true owner of the property that he did not receive personal notice of the tax foreclosure proceeding as required by the tax foreclosure statute with the following decision:
"Plaintiffs commenced this action seeking to set aside a tax foreclosure sale of a parcel of real property located at 8 Orchard Street in the Town o consequently, into disuse. After some years passed, defendants finally removed the old bridge and replaced it with a sturdy bridge made of concrete and metal. At that point, plaintiffs roped off the end of the bridge on their property. Plaintiffs commenced this RPAPL 871 action [i.e. an action brought by the owner of real property for an injunction directing the removal of a structure which encroaches on their land] alleging that the new bridge encroached on their property. They sought an injunction to prevent defendants from using or maintaining the bridge, and to remove any encroachments. Defendants counterclaimed under RPAPL article 15 [i.e. an action brought to determine a claim to real property] for declaratory and injunctive relief establishing the validity of their rights-of-way, and for damages for trespass. Supreme Court granted defendants' motion for summary judgment dismissing plaintiffs' complaint, awarded defendants nominal damages for plaintiffs' trespass, issued a declaration that defendants enjoyed two rights-of-way and defined those rights-of-way. Plaintiffs appeal.
Supreme Court properly granted defendants' motion for summary judgment and issued a declaration regarding the existence of two rights-of-way. The documentary evidence established that defendants were expressly granted two rights-of-way, both came from the same chain of title, both appeared in an abstract of title to plaintiffs' property, both were granted prior to the time that the plaintiffs took title to the servient property, defendants did not give up the first right-of-way when receiving the second and the two rights-of-way did not merge. The rights-of-way led to the bridge accessing defendants' parcel. Those rights were granted 'for all legal purposes,' including 'vehicular ingress and egress' to defendants' parcel on the far side of a brook, which necessarily implied a right to maintain and repair the bridge within those rights-of-way . . . Thus, defendants were entitled to a declaration that they have valid use of the two rights-of-way as shown on their surveyor's map.
Supreme Court properly found that defendants did not abandon the rights-of-way. Defendants' RPAPL article 15 counterclaim required the court to determine the validity of the rights-of-way, and such rights were only valid if they were not abandoned. As nonuse alone is sufficient to prove abandonment of a right created by grant, plaintiffs were required to provide clear and convincing proof that defendants intended to abandon their rights-of-way . . . The proof here showed that defendants only stopped driving on the bridge, and thus the rights-of-way leading to that bridge, when it fell into disrepair and was unsafe for vehicular traffic. Defendants averred that they continued to walk over the rights-of-way after the bridge was unsafe to drive across. Plaintiffs contend that defendants stated that they no longer used the rights-of-way when they could not drive on the bridge. The submissions were insufficient to clearly and convincingly establish that defendants intended to abandon their rights-of-way. In fact, defendants' intention not to abandon was evinced by the construction of a new bridge in the same location as the old bridge. Hence, the court correctly determined that defendants did not abandon their rights-of-way.
While plaintiffs' appeal lacked merit, sanctions are not warranted because we do not find the appeal wholly frivolous."