Wilson v. Palmer

Full title: ROBERT E. WILSON et al., Appellants, v. ROGENE PALMER, Respondent

Court: Appellate Division of the Supreme Court of New York, Third Department

Date published: Jul 3, 1996

229 A.D.2d 647 (N.Y. App. Div. 1996)

644 N.Y.S.2d 872

Opinion

July 3, 1996

Appeal from the Supreme Court, St. Lawrence County (Demarest, J.).

White, J.

Plaintiffs and defendant own adjoining properties in the Town of Oswegatchie, St. Lawrence County, that abut a 25 foot-wide right-of-way they use in common with others. In October 1992, defendant paved the portion of the right-of-way abutting her premises and placed a 2 1/2-inch high speed bump across the main portion of said right-of-way. Defendant also installed a sign on the side of the road reading, "Slow — Speed Bump". Plaintiffs commenced this action in June 1993 seeking, inter alia, an injunction directing defendant to remove the speed bump from the right-of-way. A nonjury trial ensued before Supreme Court resulting in a verdict in favor of defendant. Plaintiffs appeal.

It is well established that the owner of the servient estate has the right to use its land in any manner that does not unreasonably interfere with the rights of the owner of the easement ( see, Briggs v. Di Donna, 176 A.D.2d 1105, 1108; Wechsler v. People, 147 A.D.2d 755, 757, lv denied 74 N.Y.2d 610, appeal dismissed 74 N.Y.2d 793). We find that the speed bump in question does not substantially interfere with plaintiffs' reasonable use and enjoyment of their easement. Their path remains unimpeded with the exception of the speed bump which, while undoubtedly encouraging plaintiffs to lower their rate of speed when crossing defendant's property, does not bar them from crossing it ( see, Oliphant v. McCarthy, 208 A.D.2d 1079, 1081). We conclude that Supreme Court's verdict in favor of defendant should be affirmed.

Cardona, P.J., Mercure, Casey and Spain, JJ., concur. Ordered that the judgment is affirmed, with costs.