Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the December 20, 2011 mailing of "Constructive Notice":
“Prescription” for Pollution?

A New York property owner being sued for polluting a neighboring parcel is claiming that the continuing discharge of pollutants has ripened into a prescriptive “right.” Fitzgibbons v. City of Oswego, et al., No. 5:10-CV-1038 (FJS/ATB)(U. S. Dist. Ct., N.D.N.Y., December 13, 2011).

The plaintiff brought eleven causes of action against the County of Oswego (and others) pursuant to (1) CERCLA, (2) RCRA, (3) the New York State ECL, (4) negligence, (5) strict liability for ultrahazardous activity, (6) public nuisance, (7) restitution, (8) trespass, (9) private nuisance, (10) New York State Navigation Law § 181(5), and (11) New York State Navigation Law § 176(8). The plaintiff’s parcel was situated on George Street, adjoining the county landfill. Plaintiff alleged that a 1.22-acre portion of his land was used for the dumping of hazardous wastes beginning in the 1960’s, but claimed he only became aware of the dumping in 2009. The County raised various defenses and, in response to the charge of trespass, it argued that the ongoing dumping constitutes a “continuing trespass [that] may ripen into a prescriptive right and deprive a property owner of title to his or her land . . .” In its analysis, the Court glosses over the inherent theoretical inconsistency in the County’s assertion, but pointedly notes the tactical risk: “In addition, the County Defendant's passing reference that it obtained a prescriptive easement in the George Street Property by virtue of the continuing trespass of contaminants on the Property — a curious argument for someone in the County Defendant's position to make — is another issue of fact best left for discovery.”


The County’s assertion “smells” more like a claim of title by adverse possession than an easement by prescription. Even if the common-law elements of adverse possession can be established, it remains to be seen whether the dumping of hazardous waste would satisfy the “usually cultivated or improved” requirement of RPAPL §522 (as in effect prior to 2008). The notion of an “easement by pollution,” while advocated by adherents of the “Chicago School” of law and economics, has yet to be accepted in the courts. Of course, when a municipal polluter is involved, any “easement by pollution” theory would also necessitate a takings clause analysis. “Constructive Notice” will continue to monitor this case for important developments on this issue.