Opinion
July 11, 1986
Appeal from the Supreme Court, Cayuga County, Corning J.
Present — Callahan, J.P., Denman, Boomer, Green and Balio, JJ.
Order unanimously modified, on the law, and, as modified, affirmed, without costs, in accordance with the following memorandum: Plaintiff, who owns a parcel of vacant land in the Town of Fleming, moved to Florida in 1970. During 1971 the town installed a sewer system, and one of the lines was installed upon plaintiff's land. Although plaintiff occasionally drove past the property during visits from Florida, he discovered the sewer line for the first time in the fall of 1981 when he came upon a manhole cover while showing the parcel to a prospective purchaser. This action was commenced within three years of that discovery.
Special Term denied defendant's motion to dismiss concluding that the action to enjoin a continuous trespass and for damages did not accrue until plaintiff became aware of the intrusion. We agree that the complaint, to the extent it alleges facts constituting a continuous trespass, was not time barred, but for a different reason.
An action predicated upon a continuous trespass is barred only by the expiration of such time that would create an easement by prescription or change title by operation of law (509 Sixth Ave. Corp. v New York City Tr. Auth., 15 N.Y.2d 48, 52). Defendant had the burden of presenting convincing evidence that plaintiff actually knew of the town's adverse use or that the use was so visible, open, or notorious that such knowledge should be imputed to him (Treadwell v Inslee, 120 N.Y. 458, 465). We conclude that a question of fact exists as to whether the mere existence of the manhole cover is sufficient, under the circumstances presented in this record, to impute knowledge of the intrusion to plaintiff (see, Historic Estates v United Paper Bd. Co., 260 App. Div. 344, affd 285 N.Y. 658; Albany Garage Co. v Munson, 218 App. Div. 240, affd 245 N.Y. 613), which should be left to the trier of the facts (see, Trepuk v Frank, 44 N.Y.2d 723, 725). Moreover, since plaintiff seeks injunctive relief, filing of a notice of claim under Town Law § 67 and General Municipal Law § 50-e was not required (Malcuria v Town of Seneca, 84 A.D.2d 931, 932, mot to dismiss appeal granted 55 N.Y.2d 1037).
The complaint also alleges a de facto appropriation. A de facto taking is similar to a trespass in that both require a physical entry. However, a trespass is temporary in nature, and a de facto taking is a permanent ouster of the owner or permanent interference with his physical use, possession and enjoyment of the property by one having condemnation powers (City of Buffalo v Clement Co., 28 N.Y.2d 241; Mickel v State of New York, 77 A.D.2d 794; Hylan Flying Serv. v State of New York, 54 A.D.2d 278). An entry cannot be both a trespass and a taking because, in the latter instance, the condemnor acquires ownership. The lean record before us does not permit a determination that the town's entry was permanent, and the issue of whether the entry was a trespass or taking must be resolved at trial. We do note, however, that any claim for damages resulting from a de facto taking is time barred. Such a claim would have accrued in this instance when the condemnor physically entered upon the property and installed the sewer line (Rymkevitch v State of New York, 42 Misc.2d 1021; see also, 509 Sixth Ave. Corp. v New York City Tr. Auth., supra, p 51).
Accordingly, we modify the order to grant that portion of defendant's motion seeking dismissal of the de facto appropriation claim.