Opinion
July 14, 1992
Appeal from the Supreme Court, Niagara County, Koshian, J.
Present — Green, J.P., Lawton, Boehm, Davis and Doerr, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and judgment granted in accordance with the following Memorandum: Plaintiffs own property at the corner of Kayner and Chestnut Ridge Roads in the Town of Royalton. The Town filed a certificate of abandonment with respect to the portion of Kayner Road between Mill and Chestnut Ridge Roads, and plaintiffs commenced this action for judgment declaring that the Town's action is void and that the portion of Kayner Road in issue is a public highway. After a nonjury trial Supreme Court dismissed the complaint, finding that the road at issue had been abandoned under Highway Law § 205 (1).
The court's decision on the issue of abandonment will not be disturbed if it is supported by a fair interpretation of the evidence (see, Matter of Faigle v. Macumber, 169 A.D.2d 914, 915; Daetsch v. Taber, 149 A.D.2d 864, 865; McCall v. Town of Middlebury, 52 A.D.2d 736).
The burden of establishing abandonment is on defendants, who claim that an abandonment has taken place (see, Matter of Faigle v. Macumber, supra, at 915; Daetsch v. Taber, supra, at 865). Defendants met their burden of proving that the contested portion of Kayner Road had not "been traveled or used as a highway for six years" (Highway Law § 205). The trial testimony and exhibits established that the road had been impassable most of the year and difficult to travel even in the drier summer months. It is a one-lane dirt road, used occasionally by four-wheel drive trucks, recreational vehicles, farmers and hunters. Such occasional, limited use does not amount to "use `as a highway', which presupposes `[t]ravel * * * in forms reasonably normal'" (Matter of County of Suffolk [Arved, Inc.], 63 A.D.2d 673, 674, quoting Town of Leray v New York Cent. R.R. Co., 226 N.Y. 109, 113; accord, Matter of Faigle v. Macumber, supra, at 916; Daetsch v. Taber, supra, at 866).
Plaintiffs contend that defendants should be estopped from asserting that Kayner Road was abandoned because the Town certified, during the relevant period, that the road was a Town highway for the purpose of obtaining State highway funds. The doctrine of estoppel, however, generally may not be invoked against a municipality acting in its governmental capacity (see, Granada Bldgs. v. City of Kingston, 58 N.Y.2d 705, rearg denied 58 N.Y.2d 825). Further, the Town's certification of Kayner Road as a Town highway in its application for State aid is not at all inconsistent with its later certification of abandonment for nonuse. Until the road was abandoned pursuant to Highway Law § 205 (1), it remained a Town highway. If we were to accept plaintiffs' position, the Town would effectively be required to project, six years in advance, that State highway aid should not be sought for a particular road. We decline to impose such an unreasonable burden on the Town. To the extent that our decision conflicts with the holding in Matter of Shawangunk Holdings v Superintendent of Highways of Town of Shawangunk ( 101 A.D.2d 905), we reject the result reached in that case.
Any defects in the certificate of abandonment are of no consequence in this action. The certification of abandonment is a ministerial act. If the facts constituting an abandonment are present, the road is deemed abandoned by operation of law, not by the filing of the certificate (see, Matter of Faigle v. Macumber, supra, at 916; Daetsch v. Taber, supra, at 865; Cranson v. Town of Homer, 132 Misc.2d 824, 828).
The court erred in granting judgment to defendants dismissing the complaint rather than declaring the rights of the parties (see, St. Lawrence Univ. v. Trustees of Theol. School of St. Lawrence Univ., 20 N.Y.2d 317, 325; Baier v. Town of Ellery, 182 A.D.2d 1033; Medical World Publ. Co. v. Kaufman, 29 A.D.2d 859). Thus, we modify the judgment to declare that the portion of Kayner Road between Mill and Chestnut Roads has been abandoned pursuant to Highway Law § 205 (1).