Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter


Excerpted from the December 5, 2011 mailing of "Constructive Notice":
New Precedent Emerges from Rare
Non-Judicial Jury Trial 

“An ancient and archaic provision of the Highway Law which is unique and rarely utilized” has resulted in new precedent coming from the County Court of Franklin County.  Matter of Preserve Assoc. LLC v. Nature Conservancy Inc., 2011 NY Slip Op 21417 (County. Ct., Franklin County.)
New York State Highway Law §§300, et seq., provides a mechanism by which a private landowner may file an application with the local highway superintendent seeking to open a road across a neighboring parcel in order to gain access to the applicant’s parcel.  Once the application is filed, the highway superintendent is empowered to convene a jury ”for the purpose of determining upon [sic] the necessity of such road, and to assess the damages by reason of the opening thereof.” The jury must be comprised of “resident freeholder[s] of the town.”
In this case, the landowner was attempting to gain access to a 1282-acre parcel it owned in fee and was part of a 5800-acre waterfront parcel the landowner was seeking to develop.  According to the decision, “no judge presided over the trial.  The parties, through counsel, stipulated to procedures to be followed during the proceedings. Witnesses testified, evidence was presented, and the jury viewed the site of the road proposed by [the applicant].”  The jury determined that the private road was necessary and assessed damages of $10,000.  The jury also determined that the applicant could install an underground electric line beneath the private road.  The aggrieved neighbor “appealed” to County Court, the only “appeal” allowed under Highway Law §312 (which actually provides only for a motion to “confirm, vacate or modify” the jury determination).
The neighbor had argued to the jury that a 1920 deed established a right of way for the benefit of the applicant’s parcel, which made the opening of a new road unnecessary and, as a result, made Highway Law §§300, et seq., inapplicable to the current situation.  The Court determined that the mere existence of an alternate means of access did not preclude a jury determination on the question of necessity. “The jury heard the witnesses and reviewed the documentary evidence [the 1920 deed] and determined, by a preponderance of the evidence, that [the applicant] proved its case for necessity.” 

With respect to the underground electric line, the Court found that the statutory language only addressed the laying out of the private road. “The Court concedes that there is little case law available dealing with article XI of the Highway Law, in general, and nothing at all on this particular issue.  This Court is unwilling to create and provide greater rights to [the applicant] than the legislature has, to date, deemed necessary. …  As such, this Court finds that the jury lacked the authority to grant  [the applicant] the right to lay underground electric lines beneath the private road.” That portion of the verdict was vacated, but “every other provision of the jury’s verdict” was confirmed by the Court.  


Apparently, no argument was made concerning the applicability of either Highway Law §314 (“For what purpose private road may be used”) or RPL § 335-a (“Easements  of necessity“) to the situation at bar. As developable land becomes scarce, and environmental or other land-use regulations restrict accessibility to remote areas, hitherto under-utilized statutes such as these can be expected to assume a larger role.