Heard: January 12, 2017.
Possession and Prescription. Easement.
Municipal Corporations, Adverse possession.
Way. Real Property, Easement, Adverse
possession. Practice, Civil, Summary judgment.
action commenced in the Land Court Department on May 20,
case was heard by Alexander H. Sands, III, J., on
motions for summary judgment.
L. Miles (Michael Pill also present) for the plaintiffs.
Janelle M. Austin for the defendants.
Milkey, & Henry, JJ.
issue in this case is whether the town of Westhampton (town)
has acquired an easement by prescription over a triangular
parcel of land (triangle) and an abutting roadway (way),
together the "disputed area, " owned by the
plaintiffs, Louanne and George Athanasiou. On cross motions
for summary judgment,  a Land Court judge determined that
the public's use of the way for a continuous period in
excess of twenty years, coupled with the town's
maintenance of the disputed area to provide for such public
use, was sufficient to establish a prescriptive easement over
the disputed area for the benefit of the town and its
inhabitants. The plaintiffs appeal.
following facts are not in dispute. The way is an unnamed,
paved roadway that connects North Road and Southampton Road
in the rural town. The roads merge at an intersection located
at the tip of the triangle, and the way provides a convenient
connection between the two roads (known in common parlance as
a "cut-through"). The way is wide enough to
accommodate traffic in both directions and has been used by
the public continuously for more than twenty years. The town,
which does not maintain private roads, has maintained the way
for public traffic during that time. Once in the early 1990s
and again in or about 2005, town employees oiled and graveled
the way. The town plows and sands the way approximately
twenty times per year. It also patches potholes, clears
fallen tree limbs, prunes trees, and collects brush
obstructing the way.
triangle is an open area of land abutted on its two sides by
North Road and Southampton Road and, at its base, by the way.
There was no evidence that members of the general public
actively use the triangle. However, the town installed a
drainage system on the triangle that allows water to drain
from North Road, Southampton Road, and the way. The drainage
system, which includes a swale located on the triangle,
been cleared and maintained by the town for more than twenty
years. In addition, the town has mowed the grounds as needed,
has removed dead trees, and it has planted new trees in the
triangle. The town has not assessed taxes on any portion of
the disputed area to the plaintiffs or to anyone else.
basis of these uncontroverted facts, the judge determined
that the disputed area is subject to the town's
prescriptive rights. The judge further concluded that the
easement is limited in scope, ruling that the town may
"only . . . make use of the [d]isputed [a]rea in the
manner in which they have been used . . .; the [t]own's
prescriptive rights shall not include the right to expand
upon the roadway or to take actions that would result in an
increase in vehicle traffic upon the [w]ay, or to make any
other use of the [d]isputed [a]rea other than to maintain
same in such a manner as will ensure ...