Property owner plaintiffs commenced this action after snow plows operated by defendant Town of Shandaken (“Town”) allegedly damaged part of a privacy fence installed along Fox Hollow Road in the front of their property. Plaintiffs alleged trespass and negligence for damage to the fence, and a third cause of action alleging that the Town widened Fox Hollow Road in 2010, taking their property without compensation and altering the drainage such that run-off from the road contaminated their well.  The Supreme Court, Ulster County, granted the Town’s motion for summary judgment, and Plaintiffs appeal.

On the first two causes of action, Plaintiffs argued that the Town’s easement was limited to the width of the paved portion of Fox Hollow Road prior to the 2010 expansion because that is the only portion of the road that had been used by the Town for the statutory period of 10 years.  However, the Third Department noted that under Highway Law § 189, once a roadway is established as a highway by use, a town may maintain and improve it in furtherance of the public’s right of travel, to the width of “at least three rods.” Here, it was undisputed that Plaintiffs’ fence and the widening of the roadway were within the three-rod width that defendants were statutorily authorized to open. As the Town was engaging in permissible uses of its easement, the lower court’s judgment was affirmed

On the third cause of action, however, the Court held that the lower court erred in granting the Town’s motion to the extent that it alleged a de facto taking based upon the contamination of plaintiffs’ well.  The Court found that the record established that the Town proffered no proof and, accordingly, did not meet its initial burden concerning this claim.  Thus, the Third Department reinstated this claim.

The case was Hoffman v. Town of Shandaken, 147 A.D.3d 1275 (3d Dep’t 2017).