Did Chain Link Fence Cross Shared West 11th St. Property Line?
Ribao Xiao and Nina Cheung are owners of neighboring real estate in Brooklyn. The two houses are positioned in such a manner that there is a driveway running vertically and parallel to their properties from the street into the backyard.
Xiao, proceeding pro se, filed a verified complaint against Cheung with fifteen allegations of fact in support of two causes of action. The first cause of action was for a permanent injunction. The second cause of action was for a declaratory judgment.
Cheung filed an answer that asserted twelve affirmative defenses, four denominated as counterclaims. The first denominated counterclaim was for a declaratory judgment. The second was for equitable relief The third counterclaim sounded in nuisance. And the fourth counterclaim was for trespass.
A non jury trial was conducted via Microsoft Teams on five days. Xiao’s wife, Jian Xiao, testified first. She did not, however, return for cross examination. Consequently, her testimony was stricken at the request of Cheung. Xiao also testified and rested at the conclusion of his testimony. Cheung testified and then rested. At the close of all evidence Cheung moved for a directed verdict in her favor on her counterclaims. The Court reserved decision and directed the parties to submit requests for findings of fact. Both parties complied.
Xiao owns a house located at 1836 West 11th Street. And Cheung owns a house located at 1832 West 11th Street. New York. Standing and facing in the front street entrances of the two properties, Xiao’s house is on the left and Cheung’s house is on the right.
The driveway between the houses does not entirely belong to either party; however, each party owns a part of it. Xiao purchased his house on April 9, 2010. At the time of the purchase, the prior ownerh maintained and owned a black gate the width of which extended from the wall on the right side of Xiao’s property to the wall on the left side of Cheung’s property. The black gate was in front of and aligned with the building line of the two properties.
Sometime after April 9, 2010, and prior to July 11, 2011, Xiao obtained the permission of the prior owner of Cheung’s property to replace the black gate. On July 11, 2011, Xiao replaced the black gate with a new red gate in the exact same position.
On July 25, 2011, Cheung purchased her house. Without Xiao’s consent, Cheung removed the part of the red gate that was on her part of the driveway. Cheung did so by lifting that part of the gate off the hinge on the post. Cheung then returned that portion of the gate to Xiao.
In May of 2018, Cheung put up a twenty feet long chain link fence running vertically along the driveway by the boundary line. The vertical fence extended five feet past the front of the parties building line and extended back fifteen feet into the driveway behind the driveway behind the front of the building line.
On consent, the parties admitted into evidence three surveys of the 1832 and 1836 West 11th Street properties. Cheung submitted two other surveys and Xia submitted one other survey. The two surveys submitted by Cheung demonstrated that her portion of the driveway ran 3.5 feet (or 42 inches) horizontally from the southerly wall of her house towards Xiao’s house and 100 feet vertically. All three surveys in evidence showed that Cheung had a fire escape on the southerly side of her house that overhung in her portion of the driveway. All three surveys in evidence show that Cheung’s fire escape did not encroach onto Xiao’s boundary line of the driveway.
Cheung credibly testified that she had pulled down the fire escape in 2015 when she was renovating the second floor and the ladder came down to the ground and the ladder lands directly on her portion of the land. Xiao had a fire escape on the southerly side of his house that overhung his portion of the shared driveway with the owner of 1840 West 11th St. Cheung’s deed and survey do not list any easements.
Xiao conceded that neither his deed nor Cheung’s deed included any language related to ownership of an easement over the driveway.
Xiao sought a judgment declaring that he had an easement over Cheung’s property in the driveway; declaring that he had a right to restore the red gate as it was before Cheung removed a part of it and that Cheung must pay for the restoration; and permanently enjoining and restraining Cheung from placing or maintaining a vertical fence in the driveway based on Xiao’s easement.
Cheung sought a judgment declaring that Xiao did not have an easement over her portion of the driveway; she had the right to build and maintain the vertical fence on her portion of the driveway; and damages for injury to her property caused by the installation of the red gate and for trespass and creation of a nuisance by Xioa.
Supreme Court may render a declaratory judgment having the effect of a final judgment as to the rights and other legal relations of the parties to a justiciable controversy whether or not further relief is or could be claimed. To constitute a justiciable controversy, there must be a real dispute between adverse parties, involving substantial legal interests for which a declaration of rights will have some practical effect.
The primary purpose of a declaratory judgment is to stabilize an uncertain or disputed jural relationship with respect to present or prospective obligations. Where there is no necessity for resorting to the declaratory judgment it should not be employed. Furthermore, a declaratory judgment is a judgment on the merits. Until disputed questions of fact necessary to be determined before judgment can be rendered are settled, it is plain that rights and legal relations cannot be determined, defined and declared.
A permanent injunction is a drastic remedy which may be granted only where the plaintiff demonstrates that it will suffer irreparable harm absent the injunction. Injunctive relief is to be invoked only to give protection for the future to prevent repeated violations, threatened or probable, of the plaintiff’s property rights.
An easement appurtenant is created when such easement is: (1) conveyed in writing, (2) subscribed by the person creating the easement, and (3) burdens the servient estate for the benefit of the dominant estate. A writing purporting to create an easement appurtenant must establish unequivocally the grantor’s intent to give for all time to come a use of the servient estate to the dominant estate.
To establish an easement by prescription, the plaintiff is required to show by clear and convincing evidence that the use was adverse, open, and notorious, continuous, and uninterrupted for the prescriptive period. The prescriptive period is 10 years. Where an easement has been shown by clear and convincing evidence to be open, notorious, continuous, and undisputed, it is presumed that the use was hostile, and the burden shifts to the opponent of the allegedly prescriptive easement to show that the use was permissive.
For an easement by grant to be effective, the dominant and servient properties must have a common grantor. To create an easement by express grant, plain and direct language must be used which evidences the grantor’s intention to permanently give a use of the servient estate to the dominant estate.
To establish an easement by implication from pre-existing use, there must be unity and a subsequent separation of title, the claimed easement must have, prior to separation, been so long continued and obvious or manifest as to show that it was meant to be permanent, and the use must be necessary to the beneficial enjoyment of the land retained.
The party asserting that it has an easement by necessity bears the burden of establishing by clear and convincing evidence that there was a unity and subsequent separation of title, and that at the time of severance, an easement over the servient estate was absolutely necessary to obtain access to the party’s land. The necessity must exist in fact and not as a mere convenience and must be indispensable to the reasonable use of the adjacent property.
On April 9, 2010, Xiao purchased his property and on June 7, 2018, he commenced the suit against Cheung. He did not present any evidence of the prior use of the driveway by the prior owner of his property. While he did establish that the prior owner of his property maintained a black gate in front of the driveway, he did not establish whether the black gate was adverse to Cheung’s prior property owner or permissive. Consequently, Xiao did not demonstrate, by clear and convincing evidence, that his use of Cheung’s portion of the driveway was adverse, open, notorious, continuous, and uninterrupted for the prescriptive period of ten years.
Here, Xiao submitted no documentary evidence showing that his portion and Cheung’s portion of the driveway had a common grantor. Also, Xiao did not submit documentary evidence establishing an easement appurtenant. His testimony and documentary submission failed to establish the existence of an easement over any portion of the driveway in dispute.
Xiao’s first cause of action was for a permanent injunction and the second cause of action was for a declaratory judgment. Both causes of action were premised on Xiao’s claim that he had an easement over Cheung’s property in the driveway. He did not have such an easement, consequently did not establish his entitlement to a permanent injunction or a declaratory judgment. In particular, Xiao’s claims seeking a judgment declaring that he had an easement over Cheung’s property in the driveway was denied. His claim for a judgment declaring that he had a right to restore the red gate as it was before Cheung removed a part of it was denied. And Xio’s claim that Cheung must pay for the restoration of the red gate was denied. As was his claim for an order permanently enjoining and restraining Cheung from placing or maintaining a vertical fence in the driveway.
Cheung asserted four counterclaims against Xiao for a declaratory judgment, for equitable relief, sounding in nuisance and for trespass.
The elements of a private nuisance cause of action are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act. The essential elements of a cause of action sounding in trespass are the intentional entry onto the land of another without justification or permission. Both nuisance and trespass require some intentional act on the part of the alleged wrongdoer.
Xiao credibly testified that he replaced the black gate with a new red gate before Cheung owned her property. He also credibly testified that he did so with the permission of the prior owner of Cheung’s property. Under these circumstances, Xiao’s placement of the red gate in such a manner that it was partially on the Cheung’s portion of the disputed driveway did not support a claim of trespass or nuisance. While the placement of the red gate was an intentional act, it was permissive, and therefore not unreasonable and not an intentional intrusion or entry on property..
When Cheung took ownership of her property, the red gate had already been installed. While she was free to withdraw her permission to have part of the gate situated on her property, she should not have used self-help measures to remove the objectionable portion of the red gate before seeking a judicial determination of the parties’ respective rights or before pursuing injunctive relief. Inasmuch as the placement of the red gate was permissive and the prior owner of Cheung’s property had no apparent quarrel with the work done, Cheung could not pursue damages for injury to property premised solely on the placing of posts and support on her property to build the gate before she owned the property.
Furthermore, Cheung’s claim of trespass and nuisance premised on the allegedly few occasions that Xiao drove his vehicle through the driveway to his garage in the back and may have passed on top of her portion of the driveway, did not make a prima facie showing of either trespass or nuisance. Cheung did not demonstrate that the occasional and fleeting passage of Xiao’s vehicle was intentional or unreasonable in character or that it was without justification.
Cheung sought a judgment declaring that she had a right to build or maintain the vertical fence on her property in the driveway. Owners and possessors of land generally have a right to make use and alterations to their property as they see fit–subject to the law, statutes and regulations governing the subject property and potentially subject to the rights of their neighbors for the quiet enjoyment of their own property. The Court was not aware of all the laws, statutes, code, or regulation pertaining to the erection and maintenance of fences on residential property that Cheung may be subject to. In addition, Cheung did not present any evidence regarding those rules and her compliance. Therefore, the Court could and would not issue a judicial declaration that the vertical fence currently in place was lawful or that Cheung’s intention to extend the fence was lawful.
Rather, the Court declared that the vertical fence as it existed, was on Cheung’s property line and not Xiao’s property. Furthermore, the Court determined that Xiao did not have an easement over Cheung’s portion of the driveway. Consequently, Xiao was not entitled to a mandatory injunction to have the vertical fence removed on that basis. The existence of the vertical fence did not constitute a violation of Xiao’s property rights claim over the driveway .