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HomeMy WebLinkAbout1988-0511At a Trial Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Court House in the City of Ithaca, New York, commencing on the 26th day of February, 1990. PRESENT: HONORABLE ROBERT S. ROSE, JUSTICE PRESIDING. STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, v INDEX NO. 88-511 RJI NO. 88-0356 COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, New York, DECISION Defendants. APPEARANCES: ROBERT T. JEWETT, Attorney for Plaintiffs, 55 Main Street, Cortland, New York 13045. ROBERT C. MULVEY, Tompkins County Attorney, Attorney for ➢efendants, 320 North Tioga Street, Ithaca, New York 14850. ROSR, J. This action arises out of the parties' conflicting claims to a strip of land less than 17 feet wide and 275.5 feet long between the westerly boundary of plaintiffs' property and the easterly edge of Tompkins County Road No. 125's pavement as it existed before 1987. Although this road is also referred to as the North and South Road in early deeds in plaintiffs' chain of title and as Crumtown Road, it is referred to here as "South Danby Road". Plaintiffs contend that they, by their own actions and the actions of their grantor, acquired title by adverse possession to this disputed strip of land. They allege that defendants encroached upon the disputed land when South Danby Road was widened by the county in 1987. and they bring this action, essentially in trespass, for an order requiring the removal of pavement, drainage pipe, and shoulder installed on the land at that time. Defendants contend that the public right-of-way, were it adjoins plaintiffs' premises, is 3 rods wide or 24 feet, 9 inches from its center line (16.5 feet per rod). They contend that the road was maintained as a town highway by the Town of Danby for many decades prior to its incorporation into the county road system, and that the Town obtained the 3-rod right-of-way pursuant to Section 189 of the Highway Law. Alternatively, they contend that the public has actually and continually used the entire width of 3 rods for snow removal, drainage, and maintenance of the roadway. Defendants argue that, since the disputed strip of land is totally within this 3-rod right-of-way, plaintiffs' use in common with the general public cannot ripen into title by adverse possession. Defendants also seek an order directing plaintiffs to remove -3- a stone wall that allegedly is within the right-of-way, arguing that it constitutes an obstruction pursuant t❑ Highway Law §103-a. In their complaint, plaintiffs claim that the County's right-of- way is only 16 feet wide, ❑r a distance of 8 feet on either side of its center line, because that was the width of the pavement prior to the widening in 1987. They argue, as well, that the public's actual use of the road did not exceed the width of that pavement. They assert that, prior to the widening, the land between the boundary line described in their deed and the former edge of the pavement was never used for highway purposes and they acquired ownership of it by adverse possession against their predecessor in title, Opal S. Rajala. It is undisputed that South Danby Road was a town highway maintained by the Town of Danby for many decades in the 19th and early 20th centuries. As such, its right-of-way was acquired by use pursuant to Highway Law §189. In 1921, and again in 1933, the County included this town highway in the County's road system by assuming responsibility for its maintenance. The Town's right-of-way was necessarily included, and it continues as the basis for the public's use of the road. The fundamental issue is the location of the easterly boundary line of the right-of-way of South Danby Road where it adjoins plaintiffs' property. Once that is established, the width of the public right-of-way from the center line of South Danby Road toward the westerly boundary of plaintiffs' property can be determined. On May 27, 1977, plaintiffs purchased a newly constructed home on 1.44 acres of land on the east side of South Danby Road. Their deed describes the westerly boundary of their parcel as a straight line 276.5 -4- feet long, beginning at a chiseled cross in a concrete culvert at the parcel's southwest corner and ending at an iron pin at its northwest corner. This iron pin is described in plaintiffs' own deed as "set in the easterly side of South Danby Road ... according to a survey made by Weiler Associates on October 12, 1974" (emphasis supplied). The survey map, a copy of which is attached to plaintiffs' Exhibit "4", shows the westerly boundary of plaintiffs' property from pin to chiseled cross as running parallel to, and 25 feet from, the center line of South Danby Road, thus defining the easterly boundary of South Danby Road as well. This line coincides with defendants' claim regarding the width of the public right- of-way. Contrary t❑ plaintiffs' allegations, the March 8, 1946 deed to Opal S. Rajala also describes the premises from which plaintiffs' parcel was later subdivided as having a westerly boundary beginning and ending on the east line ❑f the North and South Road. Such a description by metes and bounds beginning and ending on the exterior line of a highway "has been held to evince an intention that the grantee shall take to the side line only" (see 1 NY Jur 2d §§108, 109). This parcel, unlike others described in the same deed, did not extend to the center of the roadway. Thus, the descriptions ❑f the westerly boundary of Opal S. Rajala's property and of the westerly boundary ❑f plaintiffs' property are not in any apparent conflict, and the Weiler Associates survey in evidence reflects a 3-rod wide public right-of-way. Na surveyor was called as a witness, and no one has offered testimony or other proof sufficient to support plaintiffs' bald assertion that Opal S. Rajala, or any other private individual, holds title to the land between the former edge of the pavement and the westerly boundary of plaintiffs' property. Rather, plaintiffs' own deed and the survey referred to in it -5- establish the location of the easterly boundary line of the public's right - of -way. This is not a case where private citizens hold fee title to the center line of a roadway which the County seeks to widen by adverse use as in Matter of Usher v. Mobbs (129 Misc 2d 529 [Sup Court, Tompkins County, 19851), and the holding in that case does not apply here. Rather, this is the reverse situation where private citizens seek adverse title to a public right-of-way. In such a case: "... no individual, according to well -established principals, can gain for himself an easement on a highway by prescription, or in any way make a valid encroachment upon the public right. It is not necessary to affirm that an individual cannot enclose public land and gain title to it by long continued adverse possession ... the right of the public to a highway is paramount and controlling. The right extends to the entire territory within its limits, and consequently n❑ one can be deprived of the enjoyment of such an easement by any adverse or unlawful use or occupation of the way by an individual for his private purposes. An ❑bstruction to it, however long continued, is unlawful, and no right can be acquired by persisting in the maintenance of it." (Burbank v Fes, 65 NY 57, 69-70) Nor can the court accept plaintiffs` assertions that their westerly boundary was not explained to them at their closing in 1977, and that they never saw their deed description or its attached survey until 1986. Their contention that they thought their property extended to the pavement because their builder, the husband of their immediate predecessor in title, parked vehicles on the shoulder of the road while building their house and may have filled the front yard with rocks to the edge of the pavement to improve drainage, is not persuasive in the face of Mr. Engman's admission that he was fully aware ❑f the existence of the iron pin set in the northwest corner of plaintiffs' premises. His assertion that he was unaware ❑f its significance is, similarly, not credited due to the manner in which plaintiffs proceeded with the construction of a stone -5- wall within the right-of-way. Shortly after moving in, plaintiffs spread topsoil on their front yard from their house out to the shoulder of the road, planted grass, and mowed it. In early 1978, they began to build a low, 18-inch field stone • dry wall at the iron pin on the northwest corner of their property. However, they built it on an angle to their westerly boundary and extended it south to their driveway so that the south end of the wall, at the driveway, was closer t❑ the pavement and extended into the right-of-way. This first section of the wall was completed within a year. Before extending their stone wall further along the road south ❑f their driveway, Mrs. Engman advised a County employee of her plans and asked what he thought of them. She acknowledges that she was informed that this second section of the wall would be in the County's right-of-way, but she asserts that plaintiffs believed their boundary extended to the pavement and so they built it where they had planned, despite the County's advice. The court notes that plaintiffs' surveyed westerly boundary line parallel to this second section of the wall is clearly marked by a line of five young maple trees positioned along it (see plaintiffs' Exhibits "lb" and "17"). Despite this indication of the location of the boundary line, Mr. Engman testified that the second section of the wall, completed by early 1983 at the latest, was placed 17 feet from the center line of South Danby Road, or 8 feet into the right-of-way from plaintiffs' westerly boundary line. In the early 1980's, as the area served by the South Danby Road became more populated, the County began tree removal as a part of a plan to widen and improve the road. As a result, conflicts developed between plaintiffs and defendants. Testimony established that there was a stripof dirt along the pavement on either side which served as a shoulder. The -7- County regularly mowed brush along the side of the shoulder, although on at least one occasion Mrs. Engman attempted to prevent the County from mowing where the right-of-way adjoined plaintiffs' property. In 1984, Commissioner Mobbs wrote Mrs. Engman instructing her to remove the stone wall on the grounds that most of it was within the County's 3-rod right-of- way and hazardous t❑ traffic. She refused. In late May of 1987, the County began scraping along the side of the road in anticipation of widening it. Mrs. Engman threw dirt and pavement materials scraped off the road back onto the pavement and began digging a drainage ditch in the freshly scraped area along the edge of the roadway in front of plaintiffs' premises t❑ catch water which might flow off the pavement and into her yard. When County highway personnel became aware of her concerns, they buried a drainage pipe in sand along the shoulder in front of plaintiffs' premises. Then, defendants widened the pavement to a total of 20 feet, which extended it 2 feet closer to plaintiffs' premises, and they added a 6-foot wide shoulder along the edge ❑f the pavement. When the County's road widening project was completed in 1988, the pavement and shoulder extended 16 feet from the center line t❑ within 6 inches or so of the second, or southern, section of plaintiffs' wall. In view of the foregoing, plaintiffs' request for relief is denied, except that they are found to have a prescriptive right of use over the area of the public right-of-way necessary to provide them with access to their driveway. It is also found that a wall or other such structure need not interfere with public travel in order to constitute an obstruction within the meaning of §103-a of the Highway Law ❑f the State ME of New York. For that reason, defendants' counterclaim is granted with regard to the portion of plaintiffs' stone wall erected west of plaintiffs' westerly boundary line as shown on the Weiler Associates survey. Defendants may submit a judgment consistent with this decision. Dated: May 18, 1990 rR70BERT ROSECOURT JU TI _g_ Decision has been forwarded to the Clerk of the County of Tompkins for filing. File borrowed from the Tompkins County Clerk is returned herewith. The following exhibits have been returned to the Tompkins County Supreme Court Clerk and may be picked up from her office: Plaintiffs' Exhibits "1" through "22". Defendants'Exhibits "A" through "I". RECEIVED T(7MTKNS CCij4 f f CLErg NY 21 11 tea Fm 'q At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Court House in the City of Ithaca, New York, on the 5th day of August, 1988. PRESENT: HONORABLE ROBERT S. ROSE, Justice Presiding. STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, INDEX NO. 88-511 v RJI NO. 88-0356 COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. 112:2Dr.1*?:1'Ill [y �7 ROBERT T. JEWETT, Attorney for Plaintiffs, 55 Main Street, Cortland, New York 13045. ROBERT C. MULVEY, Tompkins County Attorney, Attorney for Defendants, County Court House, 320 North Tioga Street, Ithaca, New York 14850. f 4 nvrTCTnM -2- ROSE, J. 1 Plaintiffs commenced this action to obtain an order directing defendants to remove certain pavement, drainage pipe and shoulder that were installed adjacent to plaintiffs' property when South Danby Road was widened in 1987. Plaintiffs allege that in widening the road defendants encroached upon plaintiffs' property. Alternatively, plaintiffs seek money damages t❑ cover the cost of restoring their property to its condition prior to the widening of the road. In their answer and counterclaim, defendants deny encroaching upon plaintiffs' property and seek an order directing plaintiffs to remove a stone wall that is alleged to be within Tompkins County's right of way. Defendants move for summary judgment dismissing the complaint and directing the removal of the stone wall on the grounds that plaintiffs have no claim to the land lying within a three -rod wide right of way along South Danby Road. Defendants argue that the County obtained a three -rod wide right ❑f way pursuant t❑ section 189 of the Highway Law and that plaintiffs could not have acquired ownership ❑f the land between their westerly boundary line and the easterly edge of the paved portion of the road because land held by a municipality in its governmental capacity cannot be lost by adverse possession. Plaintiffs argue that the County's right ❑f way is only one rod wide because that has been the extent ❑f the public's use of the road. Plaintiffs also maintain that they acquired ownership of the land between the boundary line described in their deed and the former edge of the paved portion of the road by adverse possession against their predecessor in interest, Opal S. Rajola, rather than against the County. The fundamental issue here is the width of the County's right of 1 way. As construed by the court in Matter of Usher v Mobbs (129 Misc 2d -3- 529 [Sup Ct, Tompkins County, 19851), section 189 of the Highway Law creates an easement limited to the lands actually used by the public and not automatically to the width of three rods prescribed in the statute. Here, as in Matter of Usher v Mobbs (supra, at p 532), there is a triable issue of fact as to the extent of the actual use of the road for the minimum ten-year period prescribed in section 189. If the use of the road created a right of way that is only one rod wide and if plaintiffs can establish their ownership of the land between their property acquired by grant and the County's right of way, then plaintiffs would be entitled to the relief sought in their complaint. If the County can establish that a wider right of way was obtained by public use during the prescriptive period or that it is the owner of the land between plaintiff's property and the right of way, then defendant would be entitled to dismissal of the complaint and an order directing the removal of those portions of the stone wall that are within the right of way. Since the width of the right of way and plaintiffs' claim of adverse possession present triable issues of fact, none of the parties is entitled to summary judgment. Accordingly, defendants' motion is denied without costs. Submit order. DATED: September 23, 1988, Binghamton, New York. t - � OBR tT S . ROSE JUSTICE SUPR04E CC�I -4- The following papers have been forwarded to the Clerk of the County of Tompkins for filing: 1. Notice of Motion dated June 23, 1988 with ' supporting papers. 2. Answering Affidavit of Herbert J. Engman and Ronda C. Engman dated July 9, 1988. 3. Decision. 1 SEP b 2 Ili PM 'da E Sir: Take notice of an of which the within is a copy, duly granted in the within entitled action, on the day of I9 , and duly entered in the office of the Clerk of the County of on the day of 19 4 Dated r N• Y•, 19 ROBERT 1. WILLIAMSON Attorney for County of Tompkins Office and Post Office Address County Court House 320 No" Tioga Street ITI-1ACA, NEW YOM 14850 To - Attorney for II IDSl JQ., $ 'YEAR 19 8 8 ST.kf1 ' OF NEW YORK ��r;�p j7 SUPREME COURT iuh a .It`T04PKINS k4 ERBERT J. ENGMAN and ONDA C. ENGMAN, Plaintiffs _Vs — COUNTY OF TOMPKINS and ILLIAM J. MOBBS, as Commis- sioner of Public Works, Defendants NOTICE OF MOTION and SUPPORTING AFFIDAVIT Robert C. Mulvev Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Due and personal service of the . within isadmiard this day of 19 f► Attorney for 7{0 - D '47 Q PL-ri w w W .y-. y R n n w'� o • a. ev C 1� z E n o ED Y CG ^ P- n ~-' P. g 00 tv ❑ m � � a o 6 �O is Gam*. n 'LF n ro H Z" F n. o. + # I a (PERSONAL VERIFICATION) ##de of X m lark, ss~ COUNTY OF OF being duly sworn deposes and says that_ he is in this action; that ---he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this —day of 19.^ FYtaft of Nvw fork, (CORPORATION VERIFICATION) COUNTY OF ss.: OF being duly sworn, deposes and says that --he is the of the corporation named in the within entitled action; that _he has read the foregoing and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters — he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponent's belief as to all matters in the said not stated upon h own knowledge, are investigations which deponenr has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h,duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19—� jiNatr of New Vnrk, (AFFIDAVIT OF PERSONAL SERVICE) COUNTY OF ss.: or being duly sworn, deposes and says; I am over 18 years of age, not a party to this action and reside in the State of New York. That on the day of at M. at New York I served the upon therein named by delivering to, and leaving personally with said a true copy of each thereof depondent describes person served as aforesaid to the best of depondents ability at the time and circumstances of service as follows: sex: color: hair: app. age: app. ht; appL wt: other identifying features; ROBERT C.MULVEY couN YATTOONEr Cpuh7 Hpu51E ITHA[A N Y STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ---------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ---------------------------------- NOTICE OF MOTION Index No. 88-511 RJI No. 88-0356 Hon. Robert S. Rose PLEASE TAKE NOTICE, that upon the affidavit ❑f Robert C. Mulvey, swcjrn to the 23rd day of .Lune, 1988, the depositions of the parties hereto, and all the papers and proceedings heretofore filed and had herein, the undersigned will move this Court at a Motion Term to be held at the Tompkins County Courthouse in Ithaca, New York, on the 5th day of August , 1988, at 9:30 in the forenoon of that date, or as soon thereafter as counsel can be heard for a judgment dismissing the complaint pursuant to CPLR §3212 upon the ground that the cause ❑f action has no merit, and in favor of the defendants on the counterclaim, and for such other and further relief as to the Court may seem just, proper, and equitable. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion. Dated. June 2-5 , 1988 Ithaca, New York TO: ROBERT T. JEWETT Attorney for Plaintiffs 55 Main Street Cortland, New York 13045 (607) 753-0314 ROBERT C. MULVEY Tompkins County Attorney County Courthouse 320 North Tioga Street Ithaca, New York 14850 (607) 274-5546 STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ---------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs A F F I D A V I T -vs- Index No. 88-511 RJI No. 88-0356 COUNTY OF TOMPKINS and WILLIAM J. Han. Robert S. Rose MOBBS, Commissioner of Public Works, Defendants. ---------------------------------- STATE OF NEW YORK } } ss: COUNTY OF TOMPKINS } Robert C. Mulvey, being duly sworn, deposes and says: 1. That he is the County Attorney in and for the County of Tompkins, and makes this affidavit in support of the defendants' motion to dismiss the complaint herein upon the ground that the cause of action has no merit. 2. That the summons and complaint in this action were served upon the defendants on or about the 11th day of December, 1987. The action seeks a court order directing the defendants to remove all pavement, drainage pipe, and shoulder from the east side of South Danby Road (County Road 125) that extends beyond the old edge of the pavement, or in the alternative, an award in favor of the plaintiffs and against the defendants for money damages in the amount of $20,000 to repair damage and return the condition of plaintiffs' property to that prior to May 1, 1987. (See summons and complaint attached hereto as Exhibits A and B respectively.) 3. That an amended verified answer and counterclaim was served upon the plaintiffs' attorney on or about January 19, 1988 (Exhibit C), with said counterclaim seeking the removal of plain- tiffs' stone wall from the right--of-way of County Road 125. The plaintiff served a verified Reply to said counterclaim on or about February 8, 1988 (Exhibit D). ROBERT C.MULVEY COUNTYATTORHEV COURTHOUSE ITHACA, MY ROBERT C MULVEY COUNTY ATTORNEY COURT 4005E 1THACA NY 4. That the deponent believes that the cause of action set forth in the complaint has no merit. 5. That the facts with regard to the cause of action alleged in the complaint and with respect to the defendants' counterclaim are as follows: a. On May 27, 1977, the plaintiff's acquired title to a parcel of real property adjoining County Road 125 as described in a deed recorded in the Tompkins County Clerk's Office in Libre 557 of Deeds at page 666, a copy of which is attached hereto as Exhibit E. The description of the premises set forth in said deed specifically refers to a survey made by Weiler Associates dated October 12, 1974, a copy of which is attached hereto as Exhibit F. Said description and survey map readily establish that the westerly boundary of said parcel is the same as the easterly boundary of the County three -rod right--of-way as prescribed by Section 189 of the Highway Law. b. That upon information and belief said highway has been open to the public and has been maintained by the County for a. period of at least ten years both prior to and since the plain- tiffs' acquisition of said parcel. C. That in or about June of 1978 the plaintiffs com- menced construction of a stone wall within the area set forth on said survey map as the County right-of-way. The plaintiffs did not consult with any officials of the town or County prior tc, construction of the wall. The plaintiffs have estimated that it took three or four years to complete the entire wall, most of which lies within the County right-of-way. After the first sec- tion of the wall was completed, plaintiff Ronda Engman received notice from the County Highway Superintendent, Ward Hungerford, that the proposed additional sections as described by plaintiffs would be in the County right-of-way. Shortly thereafter, in spite of actual notice from the County, the plaintiffs resumed construction and did in fact construct a stone wall within the County right-of-way. (See pages 22 - 27 of the deposition of Ronda C. Engman of March 29, 1988, attached hereto as Exhibit G.) d. The plaintiffs have received written notice from ROBERT C MULVEY COUNTY ATTORNEY COURT HOUSE IT8ACA N Y County officials stating that said wall was within the County right-of-way. Exhibit H attached hereto is a letter dated April 27, 1984 from defendant Mobbs to plaintiff Ronda Engman confirm- ing that said wall was in the County right -of --way. Exhibit I attached hereto is a letter dated July 26, 1984 from plaintiff Ronda Engman, in effect refusing to remove said wall. Exhibit J attached hereto is a letter dated August 20, 1984 from the County Attorney to plaintiff Ronda Engman stating the extent of the right-of-way. 6. That based on the foregoing undisputed facts, the plain- tiffs have absolutely no standing to advance any claim of title to those lands lying within the County's three ---rod right-of-way as shown on Exhibit F. 7. That based on the foregoing undisputed facts, the Court must direct the plaintiffs to remove said stone wall pursuant to Section 103-a of the Highway Law. 8. That no previous application for the relief herein requested has been made. WHEREFORE, your deponent respectfully asks for, an order dismissing the complaint in this action and directing that summary judgment be entered in favor of the defendant County of Tompkins in its counterclaim against the plaintiffs, and for such other and further relief as to the Court may seem just and proper, together with costs and disbursements of this action. Sworn to before me this ,ZAP day of June, 1988. Notary Public SUSAN E: KlWCER Nolaty Public, Stale of New York Qualified in Tompkins Coun-y No. 4;67187 Commission expires " 30, 1 —- Robert C. Mulvey Tompkins County Attorney C 104- pouiithotNot �.'Cw rt_ 9-7 eha�i STATE OF NEW YORK SUPREME COURT T3HPIi{IWS COUNTY CGFVRic HT 1&2] by JuLIUS BLUMBLRG. INCH, LAW $Lf.HK PUBLISHERS HERBE}RT J. ENGMAN and RONDA C . ENGMAN , . Plaintiff S TOMPKINS CCUIT'17 and against WILLIAM J . MOBBS , Coatmi se i oner of Public Worl.Y. of Tumi.-kind Ccluaty, New York Defendant Index No. Plaintiff s designates TOMPKINS County as the place of trial The basis of the venue is residence of plaintiffs oLtittmans Plaintiffs resides at 571 south Danby Road Spenc_or, New York County of To the above named Defendant In arp 4pxrb-q ,r,.tunimatub to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorney(s) within 20 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in casa of your failure to appear or answer, judgment will be taken against you by default ►for the relief demanded in the complaint Rated, is CCi,�tr a C 7_ Defendant's address: ktorney(Y) for Plaintiff 13 t i C _. _; Office and Past Office Address �+ 55 'riala 7 r -JCL Ithaca, Ne—hi Y�l,: 1 !t� �C RECEIVED LJ Ljr�,land, NC-tr York 13045 Telephone: (60) 753-0314 DEC 11 1987 -rOMPK;NB ;puN?Y PUBLIC VVORAS rVl • SUPREME COURT STATE OF NEW YORK TOMPKINS COUNTY HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VERIFIED COMPLAINT - against - TOMPKINS COU TY and Index No. WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, New York, RJI No. Defendant. ------------------------------------- The plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, for their Verified Complaint set forth as follows: FIRST CAUSE OF ACTION FIRST: That at all times hereinafter mentioned the plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, were citizens of the United States of America and resident electors and taxpayers of the County of Tompkins, Town of Danby and State of New York and that they reside at 571 South Danby Road, Town of Danby, County of Tompkins, New York. SECOND: That at all times hereinafter mentioned the defendant, WILLIAM J. MOBBS, was and is the commissioner of Public Works of the County of Tompkins and that the Tompkins County Department of Public Works and the Tompkins County Highway Department are subject to and under his command, control, direction and supervision. THIRD: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by grant of a cer- tain parcel of land known as 571 South Danby Road located in the RECr_ ')EC 1 1 I9M7 TOMPKINS COUNTY F. Tpwn of Danby. County of Tompkins and State of New York, the deed to which parcel is recorded in Book 557 of Deeds at page 666 in the Tompkins County Clerk's office and a true copy of which deed is attached hereto as Exhibit "A". The frontage facing South Danby Road of the aforementioned parcel is 216.50 feet. South Danby Road is at all points a Tompkins County highway known as Tompkins county Highway number 125. FOURTH: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by adverse possession or otherwise of a certain parcel Of land also located at 571 South Danby Road in the Town of Danby. County of Tompkins and State of New York beginning at an iron pin 2316 ± feet located and described as follows: southerly from the centerline of Peters Road (being the southwest corner of lands now or formerly of M. Daggart); thence running S 240 00 E a distance of 276.50 feet to a chiseled cross in a concrete culvert; thence running southwesterly to the edge of the pavement of South Danby Road as it was constituted on May 1, 1987 Prior to the commencement of the current widening project; thence running northwesterly along the aforedescribed edge of the pavement of South Danby Road a distance of 276.50 feet to a point; thence running northeasterly to the iron pin at the point and place of beginning. FIFTH: That prior to May k. 1967 the aforedescribed edge of the pavement of South Danby Road in front of the plaintiffs afore - described property was located eight feet from the centerline of said south Danby Road, which edge is hereinafter referred to as the "old edge of the pavement". Prior to May 1, 1967 the County of Tompkins had never widened South Danby Road beyond the old edge of the road in front of the plaintiffs' aforementioned property nor ever main- tained a shoulder thereto. SIXTH: That the land described in paragraph four above had never before May 1, 1987 been used -by the County of Tompkins for highway or other purposes. SEVENTH: That the land described in paragraph four above has been used as a lawn by the plaintiffs herein and their predecessors in interest continually and exclusively for the length of time and in the manner prescribed by law so as to acquire title by adverse possession EIGHTH: That since May 1, 1-987 the Tompkins County Highway + Department has widened the aforedescribed South Danby Road pavement of the east side of the road from 8 feet to 10 feet, 15 inches in some place to 11 feet, 2 inches in others and have added drainage pipe and a shoulder that extend up to an additional 7 feet onto the plain- tiffs' lawn. As a result of the aforementioned widening project the County has wrongfully and unlawfully taken land of the plaintiffs ranging from 4 to 7 feet in depth along the entire 276.50 feet of plaintiffs' road frontage. The taking was totally without the plain- tiffs permission and against their expressed desires. Neither Tompkins county nor any other governmental agency has compensated the plaintiffs in any manner. NINTH: That the plaintiffs have searched all applicable records in the Tompkins County Clerk's office and states that there is no re- cord of the County of Tompkins or any other govermental unit having ever obtained title to the land underlying the road by purchase or grant or by any other means recognized by section 118 of the Highway Law of the State of New York. TENTH: That there is located on the aforedescribed lands of the plaintiffs about 15 feet from the old edge of the pavement a well which is the sole source of water to the home of the plaintiffs. ELEVENTH: That the aforementioned well is located at the only site on the parcel permitted therefore by the Tompkins County Depart- ment of Health and by the applicable laws of the State of New York and of Tompkins County as is more particularly explained below. TWELFTH: That a creek runs behind the plaintiffs home and roughly parallel to the road. The applicable laws of the State of New York and of Tompkins County prohibit installation of septic systems within 100 feet of a creek. The law also prohibits the in- 'stallation of wells within 100 feet of a septic system. Given the configuration of the plaintiffs` parcel, when the aforerecited laws governing the location of wells and septic systems are applied, the only legal (and environmentally safe) site to locate the well is at a point approximately 15 feet from the old edge of the payment c:n South Danby Road THIRTEENETH: That there is also located on the lands of the plaintiffs a certain stone wall which was built by the plaintiffs and which runs in a generally north -south direction the entire road frontage of the plaintiffs parcel at a distance of approximately 5 fee&A-from the old edge of the read. FOURTEENTH: That the defendant has by widening the road as aforedescribed caused irreparable damage and will cause further irreparable damage to the property of the plaintiffs in that snow plowing has and will continue to deposit road salts and automobile fuel contaminates on top of the well of the plaintiffs. If the plaintiffs' well is contaminated in this manner, their home will be rendered uninhabitable in that there is no other legal or safe place to locate their well. FIFTEENTH: That the defendant has by widening the road as aforedescribed to a distance of 5,feet from the old edge of the pavement has caused substantial damage and will continue to cause damage to'the aforedescribed stonewall by striking it with con- struction equipment and by the erosive effects of plowed snow and ice which would be heaped upon the wall. rdA�tlf�+tr P�'�•t r#t►f�T��- __ - -- ""SIXTEENTH: That the availability of fresh and pure water would render their parcel inhabitable. The aforemetioned stone wall serves to buffer the plaintiffs' home from the intrusion of the public and is a thing of beauty which contributes greatly to the plaintiffs' enjoyment of their home. SEVENTEENTH: That all the land to the east of the old east edge of the pavement of.the road along the entire length of the plaintiffs' road frontage aforedescribed belongs to the plain- tiffs. EIGHTEENTH: That neither the County of Tompkins nor any other govermental agency has ever undertaken proceedings to acquire the land underlying the road by condemnation although the section 120 of the Highway Law gives the County the power and authority to acquire land for roads and drains and ditches associated therewitb by condemnation where attempts at purchase from private owners fail. NINETEENTH: That.any right the County of Tompkins has obtained to the use of the land underlying the road was obtained solely by usage or easement. TWENTIETH: That any right the County of Tompkins may have ob- tained for passage over the road is limited in width to the width to FIrwhich the road has been used for road purposes prior to May 1, 1987. TWENTY-FIRST: That the road prior to May 1, 1987 was sixteen (16) feet in width, that is to say eight (8) feet from the center of the road to the east edge of the road and eight (8) feet from the center to west edge of the road and that.the road has never been wider. TWENTY-SECOND: That the wrongful taking of the plaintiffs' lawn aforedescribed has and will substantially lessen the enjoyment by the plaintiffs and their successors of the property which is used solely as their personal residence. That as a result of the afore- `#='{i.. wrongful taking and the construction of the highway described in paragraph eight above, the flow of rain water from the highway has been substantially increased and has been diverted onto plaintiffs' lawn and into their basement. In addition, snow plowing of the road in its widened Configuration will result in snow, road salt and other contaminates being dumped on top of the plaintiffs well which is their sole source of water. TWENTY-THIRD: That the wrongful conduct of the defendant afore - described has and will cause irreparable injury to the plaintiffs and will render any judgment for money damages obtained by the plain- tiffs of no avail and or ineffective. TWENTY-FOURTH: That the plaintiffs have a right to the final re -- lief of mandamus against the defendant. SECOND CAUSE OF ACTION For a second, separate and distinct cause of action the peti- tioners reallege each and every allegation set forth in paragraphs numbered "1" through 1124" above. TWENTY-FIFTH: That the wrongful conduct of the defendants alleged above has diminished the value of the plaintiffs, property and otherwise caused damage to the plaintiffs in the amount of $20,000.04. WHEREFORE, the plaintiffs respectfully pray for the following relief: 1. That the Court order the defendants to remove all pave - went, drainage pipe and shoulder from the east side of South Danby `..- -Road that extends beyond the old edge of the pavement; % 2. In the alternative, that the Court award in favor of the t� f dama Las in the amount plaintiffs and against the defendants money 9 !. r �• of $20,000.00 to repair damage and return the condition of e pro- ,�. p erty to that prior to May 1, 1987; and, r--- - 3. That the Court grant to the plaintiffs and against the defendants such other and different relief as to the Court seems just [C �, A. r t` t�'- and proper. r , �1 t { f ROBERT T. JEWETT ri Attorney for plaintiffs office and post office Address 55 Main Street 4 Cortland, New York 13045 �0, 1 Telephone: (607) 753-0314 STATE OF NEW YORK j COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, HERBERT J. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. ^J HERBERT ENGM Sworn to before me this � �ay of December, 1987. 1 :- :: i:C. lr{ P::.:-�. i wA of ►mow York i�r. 4.7,�457 NOTARY PUBLIC C,nalir, J, Tnmtwyv+ 4OIAW +rurrlr�to�ia� �sa1�� �. 11i,i� STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, RONDA C. ENGMAN being duly sworn, depose and say: I am the foregoing Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. Sworn to before me this "day of December, 1987. RONDA C . ENGMAN F-5-'TtiER b,: m Notary Pwjow. d Now York[ QuafifTad n T4*nD�y'� t� ►"nmmi;glcr� °`'T1r� Ma"Ch 30,19 . NOTARY PUBLIC C. MULVEY ATTORNe, T House U.NY STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS ----------------------------------- HERBERT J. ENGMAN and RHONDA C. ENGMAN, Plaintiffs -against- WILLIAM J. MOBBS, Commissioner of Public Works, and TOMPKINS COUNTY, Defendants --------------------------------- AMENDED VERIFIED ANSWER Index No. RJI No. The defendants Tompkins County and William J. Mobbs, as Commissioner of Public Works of Tompkins County, New York, individually and on behalf of the County of Tompkins, in answer to the Complaint herein: 1. Lacks knowledge or information sufficient to form a belief with respect to the allegations set ryfnorth in paragraphs rr 1, r1 113,11 4110,11 Pill," 1," 1112,11 r Y 2, „ " l C, !, " Y ❑, " and " 2 V ." 1 2.Admits the allegations set y forth in paragraph 1121' of said Complaint. 3. Denies the allegations set forth in paragraphs "4,1' 115,'r rr6," rt7rtr "grrt "13r11 +114,11 "1ra,ri 1117," 1119r11 1121,11 "22,re "23,11 "24," and '125" of said Complaint. 4. Denies the allegations set forth in paragraph "8" except for the last sentence of said paragraph, which the defendants hereby admit. AS AND FOR A COUNTERCLAIM ON BEHALF OF DEFENDANT TOMPKINS COUNTY AND AGAINST PLAINTIFFS 5. Upon information and belief, the plaintiffs are record owners of real property known as 571 South Danby Road in the Town of Danby, County of Tompkins, State of New York. Said property is more particularly described in a deed recorded in the office of the Tompkins County Clerk in Libre_557 of Deeds at page 556 on May 27, 1977, a copy of which is attached hereto as Exhibit A. 6. That the description of the property set forth in the aforesaid deed establishes that the plaintiffs' title abutts the easterly boundary of defendant's premises, hereinafter referred to as County Road 125. 7. That prior to February 29, 1984, the plaintiffs erected a stone wall parallel to the center line of said County Road 125 wholly within the bounds of said highway. 8. That the plaintiffs have been duly notified orally and in writing that said stone wall constitutes an obstruction and plaintiffs have failed to remove said. WHEREFORE, the defendants demand judgment dismissing the complaint herein and directing the plaintiffs to remove the aforedescribed stone wall pursuant to Section 103-a of the High- way Law of the State of New York, together with such other and further relief as to the Court may seem just and proper. Dated: January 15 , 1988 MULVEY rTpatiE� H��SE ROBERT C. MULVEY Tompkins County Attorney County Courthouse 320 North Tioga Street Ithaca, NY 14850 (607) 274-5546 VERIFICATION STATE OF NEW YORK } } ss. COUNTY OF TOMPKINS ) WILLIAM J. MOBBS, being duly sworn, deposes and says: I am one of the defendants in the above -entitled action; I have read the foregoing Verified Answer and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matter, I believe them to be true. William J o s Commissioi'fer a Public Works Sworn to before me this Z'day of January, 1988. ol f;l �/i•U� W W/_)oz' Notary,�Pub1 i c C MULVFY ,rrcanEr IT MOUSE ,CA y r Notzfy e� •yl Tr -fir, r 11 Uq ii Tlwrnlurr mode May 27, J War. ■LYr �[.1i. Iw... Lw� ■a/r4 tu�4.wa.• $risurrn LOIS L. ATKINSON, of Siaterville, New York, 19 77 Party of die first Part, and bothof 522EWest Ridge Road,, Williamson,hNew York,ydasitenants by the entirety, RJ121lr11SrI4 that the __party a/ the second port, paNE a— the !list punt, in consideration of _-- _____--.,___. _..____-DNE----------------- -Dollars (s 1.00------� "I'll murky aj dhc Unitrd Sines. and other gaud and valuable consideration paid by dhr- part)' u( the secolul pert, dory hereby graft and release unla the part• u/ dic scroud part, dhr lwirs or sucrostors and assigns o/ dhr party o/ the seronzl par, /nreier, all THAT TRACT OR PARCEL OF LAND situate in the Town of Darnby, County of Tompkins and State of New York, bounded and described as follows: COMMENCING at an iron pin set in the easterly side of the South Danby Road, which point is 2316+ feet southerly from the center line of Peters Road and marks the southwest corner of lands now or formerly of M. Daggart; running thence South 89, 12' 11" East 250 feet to an iron pin, thence South 241 East 276.5 feet to an iron pin; thence North 690 12' 11" !West 250 feet to a chiseled cross in a con- crete culvert; thence North 24• West 276.5 feet to the place of beginning, containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed from Earl J. Hallett and recorded in the Tompkins County Clerk's office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town o_` Danby Tax Parcel No. 28-1-16.1 Grantee sailing Address: r REAL ESTATE r �i I 2 TRAr:a�-n r�.x Tfl k1; •...; , 5 60604 Y 0 dzmin named by'dekvering to; and having pecsonal�y with said. . - Aennnrrent emir -k— t.- rs____s!s!_ ._'-[-. ---! r2f - - .. .... .. .f .,..�: - - - - .- - - .. : �.•,...,.,r�...,, •wry-+r......r►rwr..r.r.�+ra -�_���..� .�. •���.. -,�r� i�.►" .u•-,a�!"1"'fir t�y�' _ ,- • •� ...... ... .�.�_1•: r..,.... � .. ! V'""..�... •:,� • I • yi •�..-IVY• RA.?ACA--r 77 77 ir � s a�•aa•aa•r -.• f - I L. L• 0 276 . a • J,.�s 3 10 0-1 I1l'T5 Tn',TrI!., rnHIITT cant: s ©y 1" 1.44 ACRES si 2 K � 11 a it w ► i W d I El ~ I f[T �1iiSEtLl1 Cf0►� •- 9 24-- Oa olyc04.✓:i,AD guy 76.3'0' _ ., ry HAP OF PARTar LAN05 or OPAL S. RA.iRLA �,,.�.�.......� ni "►��'•s fir WFlRill A5! HORSEMEADS SZ:INO [0NVCY[4 TO ,+�'�}�' o� ";'ia '• *�_� =. 0IT. IP . I T4 DAVIQ 5TASTNY r GOVNrr OF TvfKr+Klt�& StAtE Imo. O• TOWN OF DANBY fi"'*.•�����: RCrLRENCE OC STATL Or NEW 1'OnlC } L Eaf r A+J E fk a o e, ': • ;iceI'•s,Wit '# fir : ^' -�•r 27 STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS . • - - _ —. HERBERT if. -ENGMAN" RONDA C . ENGMAN- �, Plaintiffs. - VERIFIED REPLY L 4 -TO Vs. COUNTERCLAIM TOMPKINS COUNTY and WILLIAM J. MOBBS, Index No. Comissioner of Public Works, RJI No. Defendants. --------------------------------------- The plaintiffs, 'being duly sworn, for their Verified Reply to the defendants Counterclaim, depose and state as follows: 1. ADMITS the allegations set forth in paragraph numbered 115" of the defendants Counterclaim. 2. DENIES the allegations set forth in paragraph s 11611, 147", and 1, 8 ,, . WHEREFORE, the plaintiffs demand judgement against the defendants dismissing the defendants' Counterclaim and granting the plaintiffs costs and disbursements and such other and different relief as to the Court seems just and proper. ROBERT TTfo W TT Attorney Iaintiffs Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0314 VERIFICATION =. STATE OF NEW YORK COUNTY ;OF 'Cf7�TL ; ��' HERBERT being duly sworn, ' deposes and says" _ c; • _ .� .'`ENGMAN, - •Iy m one of the plaintiffs in the above --entitled action,;, I UZI have read the foregoing Verified Re 1 and know the contents ;•.- '-- thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, Sworn to before me this 574 day of February, PNOTARY ' r • lr 4. STATE OF NEW YORK ) COUNTY OF C0CrL44b- ) ss . I believe them to be true. H ERT T. GMAN ' R08ERT T. .IF li e"TT NOTARY PUBLIM comm. EXP. 3_30_ QUALIFIED rh CORTLAND COUNTY MY REG. NO.4674753 RONDA C. ENG,"N, being duly sworn, deposes and says: I am one of the plaintiffs in the above -entitled action; I have read the foregoing Verified Reply and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. Sworn to before me this 5'7?4 day of February, RONDA C. ENGMAN r R i MZ TT.J�=TT NOTAAT PUEL10 00MM. EXP. 3-30-_ CUALIFrET, IN CORTLAND COUNTY MY REG. NO.4674753 e r 7JL e.rr w.l ! P 6713- w-rrev Asso j lis- W—.% 1..i r rrW AdWd4 r . 04ttj $rtwern lorldurr 21,63 made May 27, J"'We @Lumps-G. Iwo-. L.w 15 . g 1Y.0.... . LOI5 L. ATKINSON, of Slaterville, New York, 1977 party of the first part, and HERBERT J. ENGMAN and RONDA C. ENGMAN, husband and wife, both of 522 West Ridge Road, Williamson, New York, as tenants by the entirety, 3Vtl1erJJt3rI4 that the party of the first purl, in consideration party of the second part, af-----__,.___..__„_______ ------------------ONE---------------------------Dollars (s 1.00------ j Cnwful money of the United Slates. and other good and valuable consideration puiel by tlir purl). of the seco►rd part, dace hereby grant and release ratio llte part}' of the second part, the heirs or sucressars and assigns of the party pf the second part forever, all THAT TRACT OR PARCEL OF LANO situate in the Town of Danby, County of Tompkins and State of New York, bounded and described as follows: COMMENCING at an iron pin set in the easterly side of the South Danby Road. which point is 2316+ feet southerly from the centor line of Peters Road and marks the southwest corner of lands now or f formerly of M. Daggart; running thence South 89. 12, 11" East 250 feet to an iron pin; thence South 244 East 276.5 feet to an iron pin, thence North 890 12' 11" West 250 feet to a chiseled cross in a con- crete culvert; thence North 24• West 276.5 feet to the place of beginning, containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed from Earl J. Hallett and recorded in the Tompkins County Clerk's office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town of Danby Tax Parcel No. 28-1-16.1 Grantee Mailing Address: REAL ESTATE t MAY 2 7 W17 TRAK;F''R T,%X ToNt;• :5 GDu� 4i Y •? �! ir. '. + sd Z`'�': �r wa i..% F.F�1 xi'� Y �• �i �'• - + ". •.'�., _. ire.. 'C`rr.� i�4y•�:..�_.:_'•, "-. '•: �'.'^`.«• . �� 1 "IeASAzA sir s �* De. Do � ?7�,SD' i FILED ts J,.lt 3 I� a�I f�11'i5 Tn,'1'51i�5 rn+IlITY CICRI, 5 al'i If.E t - tD p 1.44 ACRES ova m 4, �� r � d• 4 e x r n W IL +I ! i C t —� +--M P4 • DO • DD W cOOYcivist d c[ JJ 1N �cen+c++[�i cucvtRr .IA�`AI& • Rl1R'! 'r �~�M �..��CRIJMTWmWm 11p, MAP or PART or LANDS or OPAL S.PAJALA •,,,,1.1,,...,., By W E 1 !i R A 5! a C I ►{ TE S 9l:7140 CONVEYED 7D � a••• Tt f]AVIp 5TA5TNY % ?. =�:"i; = OCT. It . 1q14 COUNTY DF rompo(INs : '' °:='a * _ SCALE p, 3oa - TDWrV OF bAN9Y = ' "I i =.. ter••` REfERE1VCE DEEP STATE yr NEW 1aRIt iyT�'�: +!►`'. r t ees w.s3; , • to0,A?S1$ n 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 P*� called herein as a witness, having been first duly affirxped, testified as follows: Q. I have a few questions for you. A. Sure. I'd like to go over a few things that you hit upon. Q. It's basically going to work this way, and your attorney can give you advice on how to handle it. I'm just going to ask questions, and I just ask that you answer them as best you can. A. You don't want me to cover the Health Department? Q. Well, if I forget something, we will try to cover what I have forgotten. Mrs. Engman, do you recall approximately when as far as a month and year that the construction of the wall was started? A. It was started probably in 1978. ¢ Do you have any recollection as to when during that year? A. Probably June. �. Do you recall consulting with any officials from the town or the county prior to the construction of the wall? A. No. I remember I did not. Q. well, what's your best recollection as -to how long 1 2 3 4 5 6 7 8 91 10 11 12 13 14 11 15 16 17 18 19 20 21 22 11 23 11 24 25 R. Engman by Mulvey 23 it took to complete the wall? A. The wall was done in three sections. The first section was directly in front of the house, and that's about 100 feet long, and that took -- I think it probably took two seasons, so probably it took two years. Just a guess. Then the other section,which is 150 feet long, was done in two sections, and that probably took another total of two seasons. 5o maybe it took either three or four years to complete the whole thing. Well, do you have an estimate as to the completion date as far as a month and year? A. Well, it might have been 1981, maybe. We only worked in the summer and fall, so it would have to have been sometime then. Q. At any time during that period do you recall having any contact with officials of Tompkins County or the town regarding the placement of that wall? A. I talked to Ward Hungerford once after the first section was completed. Q. Where did that conversation take place? A. out in the driveway. What did you say to -him and what did he say to you? A. Well, I told him something like that we had -- we were intending to put in this second long strip, and that we 9 1 2 s 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 24 21 22 23 24 25 R. Engman by Mulvey 24 wanted to know if there were basically any problems. And he got out there and measured it, and he said something like, well, this section is going to be in our right-of-way. 4 Do you recall why he was there to begin with? A. Well, because I called. Q. What prompted the call? A. I think Herb and I had said, well, we are going to put in this long section and maybe we should see if the high- way department has -- I don't remember our exact words, but something like maybe, do they have any comments. Q. Why were you interested in their comments at that point? A. I think we were trying to be nice. Q. So Mr. Hungerford arrived at your premises and you had this conversation? A. Mm-hmm. ¢ So at that point he told you that the wall that had been completed up to that point was in their right-of-way? L No. No, the new section, part of the new section would be in their right-cf-way,he said. And I said, what is your right-of-way? I mean, not that I believed that they had one. But I said, what is your right-of-way? And he starts measuring, and he came up about 15 feet of the driveway. He said, well, this is our right-of-way. n n a N ryQtl� 0 6 W W IL t a a W F W n W W N R 0 2 3 4 5 6 7 8 s 10 11 12 13 14 15 16 17 18 15 20 21 22 23 24 25 R. Engman by Mulvey 25 Q. What did you say to him? A. I didn't say anything ¢ Did you have any further conversation at that point? A. No. ¢ Well, ❑n any other occasion did you have any communications with representatives of the county regarding the replacement and the location of the wall? A. No, not that I can recall. Q. How soon after that conversation with Mr. Hungerford did your husband resume construction of the other section to the wall? A. I think shortly thereafter. It wasn't long. Q. Was there another occasion since then that you had any communication with county officials regarding the location of the wall? A. Other than last year, no --- yes, we got a letter from Sill Mobbs several years ago saying that the wall was in their right-of-way and that it had to come down. 4 I'm going to show you what's been marked as Exhibit 2. Could you take a moment to review that and tell us if you recognize it? A. I'm not sure if I remember this ❑ne or not. I think I have one in the file that's different than this -- give me a minute --shorter and a little more terse. M 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R. Engman by Mulvey 26 ¢ Why don't you take a minute to see if you have it. A. Okay, we do have that one. ¢ Could you compare that with Exhibit 2 to tell me if it's the same one? A. Mm-hmm, it looks like it. ¢ Well, after you received that letter, what, if any- thing, did you do as far as responding? A Okay, this is a letter that I wrote in July of that year. ¢ I have that as Exhibit 3. It's got markings on it, but why don't you look at Exhibit 3 and tell me if it's the same thing. A. Looks like it. ¢ Thank you. You can hang onto that. I'd like to show you Exhibit 4. Could you look at that --- which appears to be a carbon copy -- look at that and tell us if you recognize it. A. Yes, I do. Q. After receiving that did you take any action? A. I don't think I did. I don't remember taking any action. ¢ ❑o you know if you have had any further written communication with a Tompkins County official after -receiving Exhibit 4? in 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R. Engman by Mulvey 27 A. I've had a number of Communications. I mean, the number of communications I've had probably would fill volumes. There were times when they came and cut down some of our trees, and I wrote Bill Mobbs letters and said -- or Ward Hungerford and said, you've cut down my trees. I'd like to be compensated. I had a number of communications verbally and on the phone. Q. What I would like to know: Did you have any further communications with county officials verbally, face-to-face, or on the phone regarding the wall? A. Since the letter from Mr. Williamson on August 20th, 1984, I don't think so. Not that I remember. Q. I'll go back to the topic of the Health Department. At the time you took possession of the property,did you receive any information from any source about the necessity for the location of the well? A. Yes, it is my recollection that we got a written form from the Health Department that stated that there were certain footages or distances that the well had to be from the septic tank, and that in the case of having a natural water supply, like the creek near the septic tank, it had to be a certain distance from that septic system, and that a certain type of sand had to be used in the leaching field for the septic system because of the creek. And I don't have a copy C/ ( h �- HIGHWAY DEPARTMENT Tompkins County H + r _ EX ',Y. Bostwick Rd., Ithaca. N.Y. 14850 'r ' Phone: Area Code (667) 273-4262 �7 DATE: April 27, 1984 TO: Ronda Engman 571 South Danby Road Spencer, New York 14883 FROM: William J. Mobbs Commissioner of Public Works SUBJECT: Roadside Obstructions Your letter of February 29, 1984 reminded me that I should have written to you long ago regarding the stone wall that you have constructed in the highway right-of-way. This was done after we verbally indicated to you three or four years ago that any such work should be done outside of the three rod highway right--of-way. Any non -highway construction within the highway right-of-way must first be authorized by permit issued from the Tompkdns County Highway Department. Therefore, the placement of the stone wall is illegal and subjects you to fines for the violation. As progressive improvements are made to the South Danby Road, i anticipate that you will be required to remove any potions or all of the wall within the right-of-way. I bring this to your attention now so that no further construction is performed and so you may, over the next year or two, anticipate the need to relo- cate the wall. In expectation of your understanding and cooperation iii resolving this problem, I see no need to press the illegality of your action at this time. Sinc"ely, William J. Mobbs cc - R. Williamson - county attorney F�> Ll (')'� 14 July 26, 1W 20f2JCZ 6297=m J71 c5o,/A Dan6y_WoaJ cspence.r, %ew _Yo.4 14S93 (607) JY9-4031 Ward Hungerford Tompkirs County Highway Department -Bo stwick Road Ithaca :bear Mr. Hungerford: Ply husband and I have lived at our current address for more than Seven years. For much of that time, we have been in conflict with the Tompkins County Highway Department over one matter or another, but, in general, all problems seem t'o re�vert�the�HH,',5r�,hlway�,Dlepa�rt-� r 'em e rod right-of-way 0 out ment's contention that i 1,,-ht-of-way on out that a �tplo=a s seem Mr �ee rod r' V I have taken the time to go to the Law School library to read and Study t7Te New orT tate ighway laws as they pertain to this situation. I have also consulted with the firm that originally gM. 5..surveyed our property. v, In order to keep this letter from becoming the length of a short novel, allow me to state only the following. Many structures on �7- South Danby Road have existed and still exist within the three 7 _ is rod limit. Some of these structures are probably more than fifty years old. At no time in the past has a width of three rods been used on this road. view of this, Article 8 6189 Vote 19 applies. It says in part: -where less C-ian three riot a road have been contiguously used by the town for more than ten years, the extent of the user is limited to the travelled portion of the road and land necessary and incidental thereto for hi-hway purposes and the town super- intendent may not open the road to a width of three rods without .-,the consent of the abutting owners or without compensating such -owners by due process of law." Note 18 mentions in its last para- - graph, "A highway may become a public highway through public use irrespective of width; the width of such a highway is defined by the extent of the use. Let it be made very clear at this time that the F�nman�swi_llnot tment to arch, se our 2ro �e and �that er t the Highway D u �rch, ou e �m� e a t v - -. f H n wa y '1 19 r'controlment '�O 0 h land ��l ter e r s th a�m e'r �Iw i�t a e 1AP ��ft continued f Y Hunger&r.4 2 ;.. �.. ii;` trch a.. case, I would like to point out that Notes 27 and 28 �?ipf�he same,::Tara ra h state that t e ur en o roof a es a t ishing tts_er rests wit e ig way apartment. T-:.�`Wi �'u`-•- {'-. th :this in mind, I would like to state that your employee, . Mi,7,Livingstone, did, on July 18, 1984, trespass on my property pr.- 'and destroy a number of plants and one bush owned by me. Livingstone stated to me that you had authorized him to do so. , The bush that was cut down was six years old and about five feet high. I estimate its value at $15. I estimate the a�.. y `damage to the other plants to be $5 for a-SaLal of t0. I, -believe this to be fair compensation for damages done and would =appreciate bur Department reimbursin me that amount by ;_. ugust 1 884. ; , -You have been warned in the past that trespassing on our property ��� MIM r. -by-,-Hi ghway Department employees will not be tolerated. is is your final warnin It would be unfortunate if we should ever hive to go to court. But, Of course, that decision is up to you. Sincerely, y j;.4" : T. �'A i 1S '� Y+ y �� ­j August 20, 1984 Mrs. Ronda Engman 571 South ❑anby Road Spencer NY 14883 Dear Mrs. Engman : Mr. William Mobbs, Commissioner of the Tompkins County Highway Department, has referred your letter of July 25 to my office for reply. The useable portion of the highway includes not only the paved portion, but also that portion used for drainage. The ditches and paved portions are within the three --rod right-of-way, and the highway workers were only mowing that area within the three rod right- of-way. The worker involved stated he only monied up to a rock wall, which is in the right-of-way. very truly yours, Robert I. Williamson County Attorney cc: sill Mobbs r STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS --------------------------------------- HERBERT J. ENGMAN and RONDA E. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ---------------------------------------- STATE OF NEW YORK j COUNTY OF TOMPKINS) SS: ANSWERING AFFIDAVIT Index No. 88--511 RJI No. 88-0356 Han. Robert S. Rose Herbert J. Engman and Ronda C. Engman, the plaintiffs herein, being duly sworn, depose and state as follows: 1. That they make this affidavit in answer and apposition to the defendants' motion to dismiss the complaint upon the ground that the plaintiffs' cause of action has no merit and for summary judgment in favor of the defendants upon their counterclaim. 2. That the defendants have in their couterclaim alleged that the plaintiffs' stone wall encroaches upon the right-of-way claimed by the defendants along County Route 125 (South Danby Road). Accord- ingly, the defendants seek summary judgment, amongst other relief, ordering the plaintiffs to remove their stone wall from its present location. The defendants are not entitled to summary judgment upon their counterclaim for the reason that issues of fact are raised concerning whether or not the defendants have a right-of-way to the extent they claim and as to how much of the plaintiffs' above described wall lies within the right-of-way claimed by the defendants. The reasons why the defendants are not entitled to summary judgment upon their counterclaim are set forth more particularly in paragraphs 3 through 6 below. 3. That only a portion of the plaintiffs approximately 25❑ foot long stone wall lies within the right-of-way claimed by the de- fendants. The defendants' have offered no proof in support of their motion for summary judgment concerning what portion or part of the plaintiffs' stone wall lies within the right-of-way claimed by the defendants. The defendants submit in support of their motion for summary judgment only bare allegations that the entire wall is within the right-of-way which they claim. An issue of fact is presented con- cerning what portion of the wall lies with the right-of-way claimed by the defendants. This issue of fact can only be resolved by trial. 4. That the defendants claim that they have a right-of-way over County Route 125 of 3 rods (16.5 yards or 49.5 feet) pursuant to the provisions of section 189 of the Highway Law. 5. That the width of a highway by virtue of public user is de- terminated by the extent ❑f the use and where less than 3 rods have been continuously used and maintained by the highway department over the statutory period set forth in paragraph 189 of the Highway Law and the width is limited to the traveled portion of the road and land necessary and incidental thereto for highway purposes. The burden ❑f proof rests with the County to establish the extent of use. 6. That the extent of use of the right-of-way along County Road 125 by the defendants in the ten years before the present widening was done in front of the plaintiffs' home was not more than 1 rod to wit: the width of one lane of traffic in each direction. The defendants had not during that period maintained a shoulder to the road in front of the plaintiffs' home, let alone used or maintained an underground drainage system of the sort installed by the defendants at that location in ,Tune, 1987. An issue of fact concerning the width and extent of the defendants use of the right-of-way is raised which can only be resolved by trial. If the defendants' right-of-way fails to extend to the land upon which plaintiffs' stone wail lies, the de- fendants lack standing to complain by counterclaim of the manner of use of such land by the plaintiffs. 7. The defendants seek, amongst other relief, a dismissal of the plaintiffs' on the ground that the plaintiffs' cause of action has no merit. Specifically, the defendants claim that the plaintiffs lack standing to complain. The plaintiffs cause of action does have merit and the plaintiffs do have standing and thus the defendants are not entitled to an order of dismissal for the reasons set forth below. 8. That the County has never acquired a right-of-way beyond one rod for the reasons above -recited. Therefore, the defendants have no right to expand their limited right -of --way except by con- demnation or purchase - neither of which have been clone in the in- stant case. Furthermore, the plaintiffs have continuously during their tenure used the area in front of their home adversely to the edge of the old pavement as their lawn by mowing and otherwise and their predecessor in interest had also used said area adversely all for a period in excessive of 10 years from the conduct of the de- fendants complained by the plaintiffs. The plaintiffs did thereby obtain by the laws of adverse possession title to or interest in such land sufficient to give them standing to complain against the defen- dants in the manner set forth in plaintiffs' complaint. 9. That, in addition, the drainage pipe described in para- graph 8 of the plaintiffs' complaint extends on the south west portion of plaintiffs' lands well beyond the 3 rod right-of-way being claimed by the defendants. WHEREFORE, the undersigned plaintiffs respectfully ask the Court to deny the defense motion in all regards and to grant the plaintiffs such other and additional relief as to the Court may seem just and proper. AHME RBERT E N GM Plaintiff RONDA C. ENGMAN Plaintiff Signed and sworn to before me this 60day of July. 1988. ND PUBL MARM L. FMM. W/ 6911I Ei Notary "L4b9c, State, of Now York RNidr-4C in Tkqa Cuuft STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS --------------------------------- HERBERT J. ENGMAN and RONDA E. ENGMAN, Plaintiffs vs. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, AFFIDAVIT OF SERVICE BY MAIL Index No. 88-511 RJI No. 88-0355 Defendants. ---------------------------------- Donna M. Hayes, being duly sworn, deposes and states as follows: 1. That she is over the age of 18 years, not a party to the action and resides at 12 Atkins Avenue, Cortland, New York 13045. 2. That on the 13th day of July, 1988 she mailed a copy of the Answering Affidavit upon Robert C. Mulvey, Tompkins County Attorney, by sending the same to him in a stamped and addressed envelope addressed to him at the Tompkins County Courthouse, Ithaca, New York 14850 which I deposited in a depository under the control of the U.S. Postal Service in the City of Cortland, New York 13045. C DONNA M . HAY S Signed and sworn to before me this 13th day of July, 9 NOTARY PUBLIC RoaERr T. JEWlrrr NOTARY PUBLIC COWN. EXP. QQALIFIEO IX 004TL. 11D COUNTY #Y REG. NO. 40 T47,53 zto -O Z AW 1* FCC IVED `s 4lHPltt�i ;; 11HT CLERK Zg 2 35 fh'fA 'ry f Sir: Take notice of an of which the within is a copy, duly granted in the within entitled action, on the day of 19—, and duly entered in the office of the Clerk of the County " of on the day of 19 Hated , N. Y,, 19 ROBERT I. WILLIAMSON Attorney for County of Tompkins T Attorney Office and Post Office Address County Court House 320 North Tioga Street I'THACA, NEW YORK 14850 INDEX NO, A R -- R I 1 YEAR 14 S STATE OF NEW YORK SUPREME COURT County of TOMPK I NS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, _VS_ COUNTY OF TOMPKINS and WILLIAM J. MOBBS, as Commissioner of Public Works, Defendants NOTICE OF APPEAL C . MULVEY ROBERT l?SXQQXZXAME)XK Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA. NEW YORK 14850 Due and personal service of the within iS admitted this day of 19 Attorney for U:141 w Igo n 0 •� � ry ❑ ..❑ rD n rn e Fo ai ❑ N R- p- o ❑ r7 ❑ n w � h � w �- rp n ^G ❑ �' n 7a O' w P 00..g , 4a4 n O 0 LF A or Ll I (PERSONAL VERIFTCA'IioN) #tdr of New f arll, CDLAVTY OF OF being duly sworn deposes and says or thate is in this action; that .—he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters IPtherein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this —day of 19____ #tate of New Dark, (CORPORATION VERIFICATION) COUNTY OF ss.: OF being duly sworn, deposes and says that —he is the of the corporation named in the within entitled action; that --he has read the foregoing and knows the Contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters — he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponent's belief as to all matters in the said not stated upon h own knowledge, are investigations which deponent has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h—duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19 — 01 06tatr of New Dark, COON= of OF (AFFIDAVIT OF PERSONAL SERVICE) ss.: being duly sworn, deposes and says; I am over 18 years of age, not a parry to this action and reside in the Stare of New York That on the day of at M. at New York I served the upon therein named by delivering to, and leaving personally with said a true copy of each thereof depondent describes person served as aforesaid to the best of depondents ability at the time and circumstances of service as follows: sex: color: hair: app. age: app. ht appr- wn other identifying features; r STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. -------------------------------------- NOTICE OF APPEAL Index N❑. 88-511 RJI No. 88-0356 Hon. Robert S. Rose PLEASE TAKE NOTICE that the above -named defendants, County of 'Tompkins and William J. Mobbs as the Commissioner of Public Works, hereby appeal to the Appellate Division of the New York State Supreme Court in and for the Third Department from an order entered in the above -entitled action in the office of the Tompkins County Clerk on December 13, 1988, which order denied the defendant's motion for summary judgment, and this appeal is taken from each and every part of said order, as well as the whole thereof. Dated: December IC. , 1988 TO: Rachael Pierce Tompkins County Clerk Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 Robert T. Jewett, Esq. Attorney for Plaintiffs 55 Main Street Cortland, New York 13045 ROBERT C. MULVEY COUNTY gTT0RNEY COURT Hitl UJ .E ITHACA. NY ROBERT C. MULVEY Tompkins County Attorney Tompkins County Courthouse 32❑ North Tioga Street Ithaca, New York 14850 �S j 04— Summons without Notice. Blank Court. 9-i3 COPYRIGHT 1973 or JULIUS BLUNIaERG. INc LAW BLANK PUBLISHERS 1r � Personal Service, STATE OF NEW YORK SUPREME COURT Index No. TOMPKINS COUNTY Plaintiff` s designates HERBERT J. ENGMAN and TOMPKINS RONDA C . ENGMAN , County as the place of trial The Basis of the venue is Plaintiffs residence of plaintiffs TOMPKINS COUNTY and against lf WILLIAM J. MOBBS, Commissioner oflitti�n Public Works of Tompkins County, New York Plaintiffs resides at 571 South Danby Road Defendant g Spencer, New York County of To the above named Defendant [[�� T ompK l n s Vau art 4rrrl�_ qummnarb to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the Plaintiff's Attorneys} within 2 0 days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated, Deceickb.,,2r 10, 1987 ROBERT T . JEWETT Defendant's address: Attorney(X) for Plaintiff Fos'wick RoaC: Office and Pqst Office Address I thac•I , New Yo--',i 14850 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0314 kAffidavit of Service $late oaf New York, County of ga.: i being duly sworn, deposes and says; that deponent is not a party to the action, is over 18 years of age and resides at That on 19 at No. deponent served the within summons an defendant INDIVIDUAL by delivering a true copy of each to said de- t ❑ fendant personally; deponent knew the person so served to be the person described as said defendant therein. a corporation, by delivering thereat a true copy of each to CORPORATION personally, deponent knew said corporation so served to be the corporation described in said ❑ summons as said defendant and knew said individual to be thereof SUITABLE by delivering thereat a true copy of each to AGE PERSON ;/3. ❑ a person of suitable age and discretion. Said premises is defen- dant's --- actual place of business —dwelling house —usual place of abode —within the state. AFFIXING TO by affixing a true copy of each to the door of DOUR. ETC. said premises, which is defendant's —actual 4 place of business —dwelling house —usual place of abode —within the state. Deponent was un- able, with due diligence to Find defendant or a person of suitable age and discretion, thereat, having called there USE WITH Deponent also enclosed a copy of same in a 3 or 4 postpaid sealed wrapper properly addressed to defendant at defendant's last known residence, at IR and deposited said wrapper in —a post office— ofhcial depository under exclusive care and custody of the United States Postal Service within New York State. Index No. STATE OF NEW YORK SUPREME TOMPKINS COUNTY COURT HERBERT J. ENGMAND and RONDA C. ENGMAN, Plaintiff s against TOMPKINS COUNTY and WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, Neu York Defendant s #ummnnll Action not based upon a Consumer Credit Transaction ROBERT T. JEWETT Attorney( for Plaintiff Once, Post Office Address and Tel. No. 55 Main Street Cortland, NY 13445 (607) 753-0314 DESCRIPTION USE WITH Deponent describes the individual served 1 or 3 ❑ as follows: sex: ❑ male ❑ female; ❑ White Skin ❑ Under 5' ❑ Under 100 Lbs. ❑ Slack Skin © 5' 0" - 5' 3" ❑ 100 - 130 Lbs. ❑ Yellow Skin ❑ 5' 4" . 5' S" ❑ 131 - 160 Lbs. ❑ Brown Skin ❑ 5' 9" - 6' 0" ❑ 161 -200 Lbs. ❑ Red Skin ❑ Over 6' ❑ Over 200 Lbs. ❑ Black Hair ❑ 14 -20 Yrs. ❑ Brown Hair ❑ 21 - 35 Yrs. ❑ Blond Hair ❑ 36.50 Yrs. ❑ Gray Hair ❑ 51.65 Yrs. ❑ Red Hair ❑ Over 65 Yrs. ❑ White Hair [] Balding Other identifying features: Sworn to before the on SUPREME COURT STATE OF NEW YORK TOMPKINS COUNTY ------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VERIFIED COMPLAINT - against - TOMPKINS COUNTY and Index No. WILLIAM J. MOBBS■ Commissioner of Public Works of Tompkins County, New York, RJ I No. " _0 2,' � Defendant. TR.ff- ------------------------- - -- ----- The plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, for their Verified Complaint set forth as follows: FIRST CAUSE OF ACTION FIRST: That at all times hereinafter mentioned the plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, were citizens of the United States of America and resident electors and taxpayers of the County of Tompkins, Town of Danby and State of New York and that they reside at 571 South Danby Road, Town of Danby, County of Tompkins, New York. SECOND: That at all times hereinafter mentioned the defendant, WILLIAM J. MOBBS, was and is the Commissioner of Public Works of the County of Tompkins and that the Tompkins County Department of Public Works and the Tompkins County Highway Department are subject to and under his command, control, direction and supervision. THIRD: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by grant of a cer- tain parcel of land known as 571 South Danby Road located in the Town of Danby, County of Tompkins and State of New York, the deed to which parcel is recorded in Book 557 of Deeds at page 666 in the Tompkins County Clerk's Office and a true copy of which deed is attached hereto as Exhibit "A". The frontage facing South Danby Road of the aforementioned parcel is 276.50 feet. South Danby Road is at all points a Tompkins County highway known as Tompkins County Highway number 125. FOURTH: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by adverse possession or ❑therwise of a certain parcel of land also located at 571 South Danby Road in the Town of Danby, County of Tompkins and State of New York located and described as follows: beginning at an iron pin 2316 + feet southerly from the centerline of Peters Road (being the southwest corner of lands now or formerly of M. Daggart); thence running S 240 00 E a distance of 276.50 feet to a chiseled cross in a concrete culvert; thence running southwesterly to the edge of the pavement of South Danby Road as it was constituted on May 1, 1987 prior to the commencement ❑f the current widening project; thence running northwesterly along the aforedescribed edge of the pavement of South Danby Road a distance of 276.50 feet to a point; thence running northeasterly to the iron pin at the point and place of beginning. FIFTH: That prior to May 1, 1987 the aforedescribed edge of the pavement of South Danby Road in front of the plaintiffs afore - described property was located eight feet from the centerline of said South Danby Road, which edge is hereinafter referred to as the "old edge of the pavement". Prior to May 1, 1987 the County of R4:1:� �lt�U . ;:,r TG4�:�r >Fi . ..;�..y; ; . ,hut 3� � � t`�t '+off Tompkins had never widened South Danby Road beyond the old edge of the road in front ❑f the plaintiffs' aforementioned property nor ever main - twined a shoulder thereto. SIXTH: That the land described in paragraph four above had never before May 1, 1987 been used by the County of Tompkins for highway or other purposes. SEVENTH: That the land described in paragraph four above has been used as a lawn by the plaintiffs herein and their predecessors in interest continually and exclusively for the length of time and in the manner prescribed by law so as to acquire title by adverse possession. EIGHTH: That since May 1, 1987 the Tompkins County Highway Department has widened the aforedescribed South Danby Road pavement of the east side of the road from 8 feet to 10 feet, 16 inches in some place to 11 feet, 2 inches in others and have added drainage pipe and a shoulder that extend up to an additional 7 feet onto the plain- tiffs' lawn. As a result of the aforementioned widening project the County has wrongfully and unlawfully taken land of the plaintiffs ranging from 4 to 7 feet in depth along the entire 276.50 feet ❑f plaintiffs' road frontage. The taking was totally without the plain- tiffs permission and against their expressed desires. Neither Tompkins County nor any other governmental agency has compensated the plaintiffs in any manner. NINTH: That the plaintiffs have searched all applicable records in the Tompkins County Clerk's Office and states that there is no re- cord of the County of Tompkins or any other govermental unit having ever obtained title to the land underlying the road by purchase or grant or by any other means recognized by section 118 of the Highway Law of the State of New York. JAN 313 4 c6 PH 189 TENTH: That there is located on the aforedescribed lands of the plaintiffs about 15 feet from the old edge of the pavement a well which is the sole source of water to the home of the plaintiffs. ELEVENTH: That the aforementioned well is located at the only site on the parcel permitted therefore by the Tompkins County Depart- ment of Health and by the applicable laws of the State of New York and of Tompkins County as is more particularly explained below. TWELFTH: That a creek runs behind the plaintiffs home and roughly parallel to the road. The applicable laws of the State of New York and ❑f Tompkins County prohibit installation of septic systems within 100 feet of a creek. The law also prohibits the in- stallation of wells within 100 feet of a septic system. Given the configuration ❑f the plaintiffs' parcel, when the aforerecited laws governing the location of wells and septic systems are applied, the only legal (and environmentally safe) site to locate the well is at a point approximately 15 feet from the old edge of the payment :.n South Danby Road. THIRTEENETH: That there is also located on the lands of the plaintiffs a certain stone wall which was built by the plaintiffs and which runs in a generally north -south direction the entire road frontage of the plaintiffs parcel at a distance of approximately 5 feet from the old edge of the road. FOURTEENTH: That the defendant has by widening the road as aforedescribed caused irreparable damage and will cause further irreparable damage to the property of the plaintiffs in that snow plowing has and will continue to deposit road salts and automobile fuel contaminates on top of the well of the plaintiffs. If the RECEIVED Ju 33 4 06 PH '63 plaintiffs' well is contaminated in this manner, their home will be rendered uninhabitable in that there is no other legal or safe place to locate their well. FIFTEENTH: That the defendant has by widening the road as aforedescribed to a distance of 5 feet from the old edge of the pavement has caused substantial damage and will continue to cause damage to the aforedescribed stonewall by striking it with con- struction equipment and by the erosive effects of plowed snow and ice which would be heaped upon the wall. SIXTEENTH: That the availability of fresh and pure water would render their parcel inhabitable. The aforemetioned stone wall serves to buffer the plaintiffs' home from the intrusion of the public and is a thing of beauty which contributes greatly t❑ the plaintiffs' enjoyment of their home. SEVENTEENTH: That all the land t❑ the east ❑f the ❑ld east edge of the pavement ❑f_the road along the entire length of the plaintiffs' road frontage aforedescribed belongs to the plain- tiffs. EIGHTEENTH: That neither the County of Tompkins nor any other govermental agency has ever undertaken proceedings to acquire the land underlying the road by condemnation although the section 120 of. the Highway haw gives the County the power and authority t❑ acquire land for roads and drains and ditches associated therewith by condemnation where attempts at purchase from private owners fail. NINETEENTH: That any right the County ❑f Tompkins has obtained to the use of the land underlying the road was obtained solely by usage or easement. TWENTIETH: That any right the County of Tompkins may have ob- tained for passage over the road is limited in width to the width to RrCEIVIED 3GMFxIS5 CouN l y CLERK JAN 13 4 05 PH ' 89 which the road has been used for road purposes prior t❑ May 1, 1987. TWENTY-FIRST: That the road prior to May 1, 1987 was sixteen (16) feet in width, that is to say eight (8) feet from the center of the road to the east edge ❑f the road and eight (8) feet from the center to west edge of the road and that the road has never been wider. TWENTY-SECOND: That the wrongful taking of the plaintiffs' lawn aforedescribed has and will substantially lessen the enjoyment by the plaintiffs and their successors of the property which is used solely as their personal residence. That as a result of the afore- said wrongful taking and the construction of the highway described in paragraph eight above, the flow of rain water from the highway has been substantially increased and has been diverted onto plaintiffs' lawn and into their basement. In addition, snow plowing of the road in its widened configuration will result in snow, road salt and other contaminates being dumped on top of the plaintiffs well which is their sole source of water. TWENTY-THIRD: That the wrongful conduct of the defendant afore - described has and will cause irreparable injury to the plaintiffs and will render any judgment for money damages obtained by the plain- tiffs of no avail and or ineffective. TWENTY-FOURTH: That the plaintiffs have a right to the final re- lief of mandamus against the defendant. SECOND CAUSE OF ACTION For a second, separate and distinct cause of action the peti- tioners reallege each and every allegation set forth in paragraphs numbered "1" through 1124" above. RECEIVED IOP4";N� Cl f GO I JAX IJ q TWENTY-FIFTH: That the wrongful conduct of the defendants alleged above has diminished the value of the plaintiffs' property and otherwise caused damage to the plaintiffs in the amount of $20,000.00. WHEREFORE, the plaintiffs respectfully pray for the following relief: 1. That the Court Order the defendants t❑ remove all pave- ment, drainage pipe and shoulder from the east side of South Danby Road that extends beyond the old edge of the pavement; 2. In the alternative, that the Court award in favor of the plaintiffs and against the defendants money damages in the amount of $20,000.00 to repair damage and return the condition of the pro- perty to that prior to May 1, 1987; and, 3. That the Court grant to the plaintiffs and against the defendants such other and different relief as to the Court seems just and proper. ROBERT T. JEWETT Attorney for Plaintiffs Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (507) 753-0314 RECEIVED TOMPKINS COUNTY Cl FRA Jim 38 4 as P11 `89 STATE OF NEW YORK j COUNTY OF TOMPKINSj ss.: INDIVIDUAL VERIFICATION I, HERBERT J. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. H RBERT ENGM Sworn to before me this �( ay of December. 1987. e p� Notari+ F'uv. sWA aF Pew York NOTARY PUBLIC pew 41�1417 EMT osmnte�tvn pr� �9. STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, RONDA C. ENGMAN being duly sworn, depose and say: I am the foregoing Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to ray own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. Sworn to before me this ItJ , day of December, 1987. . c -Z _ 7� f NOTARY PUBLIC 52 /A RONDA C. ENGMAN NOWY POOH" !a�r iY� 4�ti4i7 d US* York Qua fled Im Tvrt� � 9_ r'ari MigaluT, L�r71rlB ,0 3i q Ll u 01 Sir. Take notice of of which the within is a copy, duly granted in the within entitled action, on the day of 19— , and duly entered in the office of the Clerk of the County Of on the day of 19 Bated , IN. Y., 19 ROBERT L WILLL4.MSOiN Attorney for County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 To. Atubrrley RIME C NO. YEAR 19. 8? STATE OF NEW YORK SUPREME COURT County of TOMPKI rS HERBERT and RHONDA ENGMAN, Plaintiffs —against— WILLIAM J . MOBBS , Commissio: -e of Public Wo;-',:s, and. TOMPKINS COUNTY, Defendants ANIEIVDED VERIFIED ANSWER C . MULVEY ROBERT Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA. NEW YOPK 14850 Due and p"sonal semce of the within is admimed this day of 19 Attorney for 0 P- 5,0111 rs.a- r' Fa -83 tj E, v „ ❑ a� °' o re s C p-, �' J -�1 a �• n 0 o C` C F; Cr er sp Fx ro 40 0" tQ H ate of Nto fork, •OMrI-. . C*3J (PERSONAL VERIFICATION) ss.. being duly sworn deposes and says that -.lie is in this action; that ___he read the foregoing and knows the contents thereof. that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this ,day of 191 ftte of N,?W fork. (CORPORATION VERIFICATION} COUNTY OF ss_ OP being duly sworn, deposes and says that the is the of the corporation named in the within entitled action; that he has read the foregoing --and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters — he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by. — is because the said is a corporation and the grounds of deponents beliel as to all matters in the said not stated upon h own knowledge, are investigations which deponent has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19 J Otate of Wrw Pork, COSY of of (AMDAVIT OF PERSONAL SI;RVICS) ss" being duly sworn, deposes and says; I am over 18 years of agz-, not a party to this action and reside in the State of New York. That on the day of at M. at New York I served the upon therein named by delivering to, and leaving personally with said a true copy of each thereof dependent describes person served as aforesaid to the best of dependents ability at the time and circumstances of service as folfows: sex: color: hair: app. age: _app, ht: appt. wt: other identifying features; JBERT L MULVEY r RS'74'.Er li ns s , STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS ----------------------------------- HERBERT J. ENGMAN and RHONDA C. ENGMAN, Plaintiffs -against- WILLIAM J. MOBBS, Commissioner of Public Works, and TOMPKINS COUNTY, Defendants --------------------------------- AMENDED VERIFIED ANSWER Index No.�'-5­1 I RJI No. 99-03J-J* Kaj'C-- The defendants Tompkins County and William J. Mobbs, as Commissioner of Public Works of Tompkins County, New York, individually and on behalf of the County of Tompkins, in answer to the Complaint herein: 1. Lacks knowledge or information sufficient to form a belief with respect to the allegations set rforth in paragraphs 11 3 , 11 P1 1 0 , 11 ,1 1 7 ,11 '0 1 2 , 01 ,1 1 6 ", " 1 8 , � and "2 0 . " . 1 2..] Admits tlhle alleegatiolnVs set 0 forth in paragraph 1121' of said Complaint. 3. Denies the allegations set forth in paragraphs "4," 115,,1 116 , 11 11 7 , 1i P19,11 T 9 , „ 11 1 3 , '1 }I 1 ! , 11 " 1 5 ' 1T iI 7 '7 ' ,1 11 19 , '1 1121 , 11 1122,11 I 22 , 1' '1 23 , 11 "2 , " and 1127511 of Said Complaint. 1 ! 41 G!w L..7 L.4 4. Denies the allegations set forth in paragraph T1811 except for the last sentence of said paragraph, which the defendants hereby admit. AS AND FOR A COUNTERCLAIM ON BEHALF OF DEFENDANT TOMPKINS COUNTY AND AGAINST PLAINTIFFS 5. Upon information and belief, the plaintiffs are record owners of real property known as 571 South Danby Road in the Town of Danby, County of Tompkins, State of New York. Said property is more particularly described in a deed recorded in the office of the Tompkins County Clerk in Libre 557 of Deeds at page 666 on May 27, 1977, a copy of which is attached hereto as Exhibit A. 6. That the description of the property set forth in the aforesaid deed establishes that the plaintiffs' title abutts the easterly boundary of defendant's premises, hereinafter referred to as County Road 125. 7. That prior to February 29, 1984, the plaintiffs erected a stone wall parallel to the center line of said County Road 125 wholly within the bounds of said highway. 8. That the plaintiffs have been duly notified orally and in writing that said stone wall constitutes an obstruction and plaintiffs have failed to remove said. WHEREFORE, the defendants demand judgment dismissing the complaint herein and directing the plaintiffs to remove the aforedescribed stone wall pursuant to Section 103-a of the High- way Law of the State of New York, together with such other and further relief as to the Court may seem just and proper. Dated: January 150, 1988 -99ERT C MULVEY COU %T I AT T Q A %E * COur, KOUSE iTMACA h V ROBERT C. MULVEY Tompkins County Attorney County Courthouse 320 North Tioga Street Ithaca, NY 14850 (607) 274-5546 STATE OF NEW YORK COUNTY OF TOMPKINS } ss: } VERIFICATION WILLIAM J. MOBBS, being duly sworn, deposes and says: I am one of the defendants in the above -entitled action; I have read the foregoing Verified Answer and know the contents thereof; the same is true to ray own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matter, I believe them to be true. Sworn to before me this ' day of January, 1988. P'A Dt�� �) (71, Notary Pblic �-'J_VEY /lezzm - fVjlliam J. Mobbs Commissioner of Public Works Notary Pub ic, Stctc of '•l::w York No. 4Ei612; Qualified it iompkim County Tom ftxPim V--*w*-— //j//Tr P 67EF WY L# dmM i Nw slFm�+ & w. W� ■..ti�u• ■wrre.o, IwC.. lwr ■u�r. �urur..[.■ dry A Ln 0.0.A V. ►{. ',', C, {p(,p; UPT-B Inbritturr rnadc May 27, 1977 $Marren LOIS L. ATKINSON, of 5laterville, New York, party of the first part, and HERBERT J. ENGMAN and RONDA C. ENGMAN, husband and wife. both of 522 West Ridge Road, Williamson, New York, as tenants by the entirety, party of the secoia part, rtlItU 14 that the party of the first part, ire consideration Of ---------------------- ----------------ONE--------------------------- llullars ($ 1. 00------ i lee4+tl rnuney a/ the United States. and other good and valuable consideration puiel by the purr}- a/ rlie sccund part, does hereby grant and release unta Ac part}- of the second part, the lu•irs or successars and assigns a/ the party of the second part Inreaer, all THAT TRACT OR PARCEL OF LAND situate in the Town of Danby, County of Tompkins and State of New York, bounded and described as follows: COMMENCING at an iron pin set in the easterly side of the South Danby Road, which point is 2316+ feet southerly from the renter line of Peters Road and marks the southwest corner of lands now or formerly of M. Daggart; running thence South 99' 12' 11" East 250 feet to an iron pin; thence South 24' East 276.5 feet to an iron pint thence North 890 121 11" West 250 feet to a chiseled cross in a con- crete culvert; thence North 24' West 276.5 feet to the place of beginning, Containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed from Earl J. Hallett and recorded in the Tompkins County Clerk's office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town of Danby Tax Parcel No. 28-1-16.1 Grantee Mailing Address: .__.....ynY Yya. REAL ESTATE MAY 2 7 1V7 TKAf,; =R T A.X GaUi ri Y CX 44~1 27 ,� _ - -•Z � � � - - - - -'; • -- - - - -. _ ._ _ - _--•:mow-----: ' -- _ ..y .. �.=:� T 1 RASAL►1 ? sr r 1?76.S0' rrT 0-1 Tn;'f I-fll; {n4liny GLIRi.'S 01'1 ILE r 1.44 ACRES r a*a m a ti T 2 o K h a ' w ' W a� .! 1 tEr - �N 214 Dd• OD W C LC r4cmt fV CLV' i RT .l++r�o ,••wce ft- NAP or PART00, LANDS Of ......�••�•.,. by WElLiR ASCOCII.-rC - OPAL $. RAJALR ,• n►+rr�'�.. ;•i►iE -.... i y �t'� F•#p0.5LNEAQg M.Y. Scipio CONVEYED TO w 'cL r,.'r'% O[7 1L, , 1,174 ❑AVID 5TA5TN Y SCALE ! + 50' covpvTr or TOMPKINS a•`.:,I REFEAEAfCE DECO TOWN OF DANS r y�tr► ' F ;.� •.� ... ''� r' L 967 P �? Z STATE Or NEW PORK �y'•f •'a,rrr" Sur .•' ,ry a +2518 4 STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS ------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, vs. VERIFIED REPLY TO COUNTERCLAIM TOMPKINS COUNTY and WILLIAM J. MOBBS, Index No.9*"-5--/1 Comissioner of Public Works, RJI No.-p3�6 Defendants. t- --------------------------------------- The plaintiffs, being duly sworn, for their Verified Reply to the defendants Counterclaim, depose and state as follows: 1. ADMITS the allegations set forth in paragraph numbered 115" of the defendants Counterclaim. 2. DENIES the allegations set forth in paragraph s "5", 117", and "8". WHEREFORE, the plaintiffs demand judgement against the defendants dismissing the defendants' Counterclaim and granting the plaintiffs costs and disbursements and such other and different relief as to the Court seems just and proper. �41 ,,,_ l ROBERT T. EW TT Attorney fo laintiffs Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (507) 753-0314 VERIFICATION STATE OF NEW YORK } COUNTY OF CD C-4,PVD HERBERT J. ENGMAN, being duly sworn, deposes and says: I am one of the plaintiffs in the above --entitled action; I have read the foregoing Verified Reply and know the contents thereof; the same is true to my own knowledge, except as to hatters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. .A� l ERT T. r MAN Sworn to before me this 5T day of February, 1988. NOTARY PUBL , STATE OF NEW YORK } COUNTY OF Cok?tA4h�' } ss . : ROBERT T. VIt `4' ETT C014M. EXP. 3-30- QUALIFlEir rN CORTLM COUNTY NY REG. NO.46747,53 RONDA C. ENGMAN, being duly sworn, deposes and says: I am one of the plaintiffs in the above -entitled action; I have read the foregoing Verified Reply and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. Sworn to before me this 5'* day of February, 1988. NOTARY PU LI)IC J RONDA C. ENGMAN ROPFriT T. J- LETS' h(#TAt,y P6ELIC COMM. EXP. 3-ao- QUALlFiEG IN CORTLAND COUNTY NY REG. NO. 074733 JAN 31 q os PSI 83 RECEIVED TOMPM ,;OW41 i Ul E RK NOTE OF' ISSUE For Motions Only FHB 2 I! 14 hN °gg Must Be riled In Duplicate Five Business Days Prior to Term MOTION TERM, TOMPKINS COUNTY INDEX NO. AR-511_ MOTION RETURNABLE MARCH 10 ., lgg_q_ SUPRE,"•`E CCURT, TOMPKINS COUiviY HERBERT J. ENGMAN and RONDA C. Motion i%WL3r ❑PPOSE❑ BY ENGMAN,- Robert T. Jewett, Esq. Plaintiff Attorney for Plaintiff COUNTY OF TOMPKINS and_ ii�LLIAM J. MOBBS, Commissioner of u c orbs-- -� Defendant . "•;ot ion xx made by ROBERT C. MULVEY_ . Attorney for Defendants Object of V`otion:T striking_ this action from the Cg,z calendar and vacating the Note of Issue filed Adjourned to Justice's 14emorandum: 198 Sir: Tale notice of an of which the within is a copy, duly granted in the within entitled action, on the day of 19— , and duly entered the office of the Clerk of the County of on the day of 19 Dated , N. Y., 19 I ROBERT I. WILLIAMSON Attorney for County of Tompkins • Office and Post Office Address County Court House 320 North Tioga Street ITHACA. NEW YORK 14850 To ._ Attorney for INDEX No. 8 8" 5 R I YEAR 19 STATE OF NEW YORK SUPREME COURT County of TOMPKINS HERBERT J. ENGMAN and R❑NDA C. ENGMAN, Plaintiffs VS COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants ❑ R D E R Robert C . Mulve�yy Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA. NEW YORK 14850 Due and personal service of the within iS admitted. this day of 19 Attorney for w n C v n p (wT R c 4 ro j dQ (p r. a Jam[ ❑ w p ;u y nra Q ev ry ro P_ ran `° cr, �2 P- a ft lu oa ❑ p �- �' pO w ro �' o rCa R 't3 N ur a A n Vr Y #Me of Xrw Turk, COUNTY of OF (PERSONAL VERIFICATION) Ss.: being duly sworn deposes and says that he is in this action; that —he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this _day of 1d ttdr of New Vork, COUNTY OF (CORPORATION VERIFICATION) being duly sworn, deposes and says that —.he is the of the corporation named in the within entitled action; that ----he has read the foregoing and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters — he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponent's belief as to all matters in the said not stated upon h own knowledge, are investigations which deponent has caused, to be made concerning the subject matter of this and information acquired by deponent in the course of h—duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19 — #Intr of New Vnrk, COUNTY of (AFFIDAVIT OF PERSONAL SERVICE) ss.: being duly sworn, deposes and says; I am over 18 years of age, not a party to this action and reside in the State of New York. That on the day of at M. at New York I served the upon therein named by delivering to, and leaving personally with said a true copy of each thereof dependent descr&s person served as aforesaid to the best of depondents ability at the time and circum tances of service as follows: sex: color: hair: app. age: app, ht appt. w-a other identifying features; POSERT C. MULVEY C4uNTY ATTQRNEV cou" HouSL ITHACA NY At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial Dis- trict, at the Tompkins County Court- house in the City of Ithaca, New York, on the 5th day of August, 1988. PRESENT: Hon. Robert S. Rose, Justice Presiding STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS --------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, vs. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ---------------------------------------- O R D E R Index No. 88-511 RJI No. 88-0356 The defendants having moved for summary judgment in favor of the defendants and against the plaintiffs pursuant to §3212 of the CPLR. in support of the motion, the defendants having sub- mitted a Notice of Motion dated June 23, 1988; the affidavit of Robert C. Mulvey, Esq., sworn to June 23, 1988, with attached exhibits; and the plaintiffs, in opposition, have submitted the affidavit of the plaintiff sworn to July 9, 1988. Upon the foregoing papers, and upon all the proceedings had herein, and upon hearing Robert C. Mulvey, attorney for the de- fendants in support of the motion, and Robert T. Jewett, attorney for the plaintiffs in opposition, and upon the decision of this Court dated September 23, 1988, and on motion of Robert Jewett, attorney for the plaintiffs, it is ORDERED, that the defendants' motion is in all respects denied without costs. Signed: December b , 1988 Binghamton, New York. ENTER,_, ,. F ,... . firu MD Ikc 13 B8 Sir: Take notice of an of which the within is a copy, duly granted in the within entitled action, on the day of 19— , and duly entered .in the office of the Clerk of the County Of on the day of --19- Dated , N. Y., 19 ROBERT 1. WILLIAMSON Attorney for County of Tompkins Offce and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Attorney for ID,0 X NO. — YEAR 19 8 STATE OF NEW YORK SUPREME COURT - County of TOMPKINS HERBERT J ENGMAN and RONDA C ENGMAN, Plaintiffs _Vs_ COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants NOTICE OF MOTION & SUPPORTING AFFIDAVIT gR�Opp�BgEERrp���TpvvC . MULVEY Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Due and personal service of the wid-iin isadmitted this day of 19 Attorney for .a `n 7 0 ILI ct^ ., w 0 r^vCt (o 0 0 U) F. H N C+ p (0 JU ¢- 5. Aa Q. �' p- C I` ❑ o v �. Ca'n 06 O ❑ k r❑i.. C � � W, � 44 m p ❑ Eh H �� � ❑ �El h' iS "t ft 0 F] rAQQ #tdr of New Durk, OF (PERSONAL VERIFICATION) ss.: being duly sworn deposes and says that --he is in this action; that —he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this —day of 19J ##u#e of New Vork, Cou= OF OP (CORPORATION VERIFICATION) ss.: being duly sworn., deposes and says that --he is the of the corporation named in the within entitled action; that he has read the foregoing and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters— he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponents belief as to all matters in the said not stated upon h own knowledge, are investigations which deponent has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h—duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19 —� JiNa#e of New Unrk, COUNTY OF r■7-4 (AFFIDAVIT OF PERSONAL SERVICE) ss.: being duly sworn, deposes and says; I am over 18 years of age, not a party to this action and reside in the State of New York. That on the day of at M. at York I served the 15 . therein reamed by delivering to, and leaving personally with said a true copy of each thereof depondent desc4cs person served as aforesaid, to the best of depondents ability at the time and circumstances of service as follows: sex: color: hair app. age: app. hn appt. wr: other identifying features; SUPREME COURT : STATE OF NEW YORK COUNTY OF TOMPKINS -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs _VS_ COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. NOTICE OF MOTION Index No. 88--511 RJI No. 88-0365 Hon. Robert S. Hose PLEASE TAKE NOTICE that upon the affidavit of Robert C. Mulvey, sworn to on the ji day of February, 1989, and upon all the papers and proceedings heretofore had herein, a motion will be made at a motion term of this Court to be held at the Tompkins County Courthouse in the City of Ithaca, New York, on the lath day of March, 1989, at 9:30 a.m. in the forenoon of that day, or as soon thereafter as counsel can be heard, for an order striking the above -entitled action from the calendar of this Court and vacating the Note of Issue filed herein upon the ground that said action is not ready for trial and all preliminary proceedings have not been completed, and for such other and further relief as may be just and proper, together with the costs of this motion. PLEASE TAKE FURTHER [NOTICE that answering affidavits, if any, are to be served at least seven days before the return date herein in accordance with the provisions of CPLR §2214-b. Dated: February 1 , 1989 ROBERT C MULVEY C OUNTV AT 7ORNE+ COURTHOUSE ITHACA NY TO: ROBERT T. JEWETT, ESQ. Attorney for Plaintiffs 55 Main Street Cortland, NY 13045 ROBERT C.MULVEY COUNTY ATTORNEY COURT HOUSE IT RAGA. H Y ROBERT C. MULVEY Tompkins County Attorney Attorney for Defendants Tompkins County Courthouse 320 North Tioga Street Ithaca, NY 14850 (607) 274-5546 RE=CF C Uhr'f CLERK FEB 10 64 AR ' 89 SUPREME COURT : STATE OF NEW YORK COUNTY OF TOMPKINS -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. STATE OF NEW YORK } } ss: COUNTY OF TOMPKINS } A F F I D A V I T Index No. 88--511 RJI No. 88-0355 Hon_. Robert S. Rose ROBERT C. MULVEY, being duly sworn, deposes and says: 1. That he is the County Attorney of Tompkins County, attorney for the defendants in the above -entitled action; that he has handled this matter from its inception, and is fully familiar with all the pleadings and proceedings heretofore had herein. 2. This affidavit is made in support of the defendants' motion to strike the above -entitled action from the calendar of this Court and to vacate the Note of Issue filed herein (Exhibit A attached hereto). 3. That all the necessary and proper preliminary proceed- ings referred to in paragraph 1 of the Statement of Readiness filed herein (Exhibit B attached hereto) have not been completed, nor has a reasonable opportunity been afforded to the defendants to complete such proceedings. 4. That on ,Tune 23, 1588, the defendants duly moved for ROBERTC MULVEY summary judgment pursuant to C1'LR §3212, which motion was denied COUNTY ATTORNEY COURT HOUSE THACA NY by an order dated December 6, 1988. The defendants filed a Notice of Appeal dated December 16, 1988 (Exhibit C attached hereto). 5. That your deponent has prepared a Record on Appeal and has forwarded same to the plaintiffs' attorney for stipulation (Exhibit D attached hereto). 6. Upon execution of said Record on Appeal, your deponent will promptly file a Brief and Appendix with the Appellate Divi- sion, Third Department. 7. That until said appeal is determined, it cannot be said that all necessary or proper proceedings have been completed. 8. That no previous application for the relief sought herein has been made. WHEREFORE, deponent asks for an order striking the above - entitled action from the calendar of this Court and vacating the Note of Issue filed herein. Sworn to before me this 1S �_ day of February, 1989. Notary Public 5U5AN E' COOK Notary Public, State of New York No. 4847W Qualified in Tompkins County Commission expires No.. 30, i91 ROBERTC MULVEY COUNTY ATTORNEY COURT HOUSE 4TFIACA MY e OV 6AGNANG1 rL. A 10RVAUWAY. n. T. c:. I NOTE OF ISSUE (TYPE OR PRINT) Index No. 8$_511 SUPREME COURT R.J.I. Nc. 88-0356 County of mnM-0 !r T M c HERBERT J. ENGMAN and RONDA C. ENGMAN Pdainti§(s ) against COUNTY OF TOMPKI`S and WILLI?! J. MOBBS, Defendant(s) Notice for Fe-,,r:iary 19 39 Trial Term Jury demanded ❑ 6 jurors ❑ 12 jurors ❑ TRIAL: Without jury] Filed by attorney (1� for Plaintiffs Date summons served 1 2 f 11 /87 Date issue joined 1 • . This space Ior Clerk's stamp NATURE AND OBJECT OF ACTION (specify for each cause of action) NEGLIGENCE M.V. R.R. Bldg. & Sidewalk Other Property darrrage ❑ ❑ ❑ E� Personal inj ury ❑ ❑ ❑ ❑ Both ❑ ❑ ❑ ❑ OTHER TORT {specify} TRESPASS CONTRACT (specify) OTHER LAW (specify) MATRIMONIAL (specify) OTHER EQUITY (specify) Amount demanded Other relief Attorney{z) for Defendants) Office Address Phone Number Attorney} for Plaintiff (s) Office Address Phone Number Preference claimed under... R icharci C . Ifu l.vay Tompkins County Attorney Tompkins Count- Courthous? Ro"n2r' T. Jc'Tmt ' 55 Main Street Cortland, NY 13045 ..........................on the ground that.. ...... NOTE: This note of issue must be accompanied by statement of readiness or stipulation thereof, as required by Special Rule Respecting Calendar Practice for Supreme Court in Third Department. SEE REVERSE SIDE EXHIBIT A STATEMENT OF READINESS —Third Uepartment All necessary or proper proceedings,aVowed by CPLR 304L3443 and CPLA art. 31 and by the rules. of this court applicable to notes of issue 1] have been completer) by all parties hereto; 2) there has been a reasonable opportunity to complete such proceedings, or 3) the parties do not intend to conduct any such proceedings and 4) the case is ready for trial. Date -....!I = oars. 26-r.. 1989 • Strike out if inapplicable. 4(Print ham clot Signature) R o'-e r m J� -nrr t t Attorney(q) for Plaintiff Office Address 55 Main Str?et Stipulated that the above enumerated proceedings have been completed or waived. -, , _ 7 9 Dated:-------. ;}.1 _z z : _ C , 1 - r Attorney (s) for Plaintiff FOURTH JUD•ICI?tL State of New York, County of y� r! X ............................... _......._.._._._....__.__.................. ............ .................... � Attorney(s) for Defendant CT. See special calendar control rules and additional requirements. sa: 11 State of New York, County of C o r t-1ai: being duly sworn, deposes and says; that deponent is not a party to the action, is over 18 years of age and resides at That on the day of 19 deponent served the within note of issue and statement of readiness on attorneys] for herein, at his office at Jr.cti:12 D. Fior2ntini as.: being duly sworn, deposes and says; that deponent is not a party to the action, is over 18 years of age and resides at That on the 2 r" h day of J " r zi =r `' 19 89 deponent served the within note of issue and statement of readiness on Ric:Inr-_ C. Mu1v:3y during his absence from said office attorneyW for defer: ant Strike out tither (a) or M at County C4Tu t.1oust? r Ithaca, NY (a) by then and there leaving a true copy of the same with the address designated by said attorney(i) for that purpose by deposit- 14850 ing a true copy of same enclosed in a postpaid properly addressed his clerk; partner; person having charge of said affice. wrapper, in —a post office --official depository under the exclusive care (b) and said office being closed, by depositing a true copy of same, and custody of the United States postal Service within New York State. enclosed r scaled wra.+per directed to said a[tornry(s), in the office letter dropor box. Sworn to hcfwr me, this Sworn to before me, this i i i;.l cTi;ar� I:+.. G • F FORENTIN. day of 19 day of ^. U- y y ., Ad>ttiss=, of Service a ER I I- jz%VE T h") T M,Y PUBL]C GOMi4, EXP.6-30 J�p QUALIFIED ftt COR MAND C'J?; TY NY Rini. h0. 4874753 17tte service of a note of issue and statement of readiness, of which the within is a copy, admitted this- .....day uf......................................................... 19... ._.._. Attorney(s) for. ..................... EXHIBIT B STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ------------------------------------- NOTICE OF APPEAL Index No. 88--511 RJI No. 88-0356 Han. Robert S. Rose PLEASE TAKE NOTICE that the above -named defendants, County of Tompkins and William J. Mobbs as the Commissioner of Public Works, hereby appeal to the Appellate Division of the New York State Supreme Court in and for the Third Department from an order entered in the above -entitled action in the office of the Tompkins County Clerk on December 13, 1988, which order denied the defendant's motion for summary judgment, and this appeal is taken from each and every part of said order, as well as the whole thereof. Dated: December /4- , 1988 ROBERT C. MULVEY Tompkins County Attorney Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 TO: Rachael Pierce Tompkins County Clerk Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 Robert T. Jewett, Esq. Attorney for Plaintiffs 55 Main Street Cortland, New York 13045 !QBERT C MULVEY COUNTY ATTORHET CCUPT P40USE EXHIBIT C ITWA[A NY 11 .s January 30, 1989 Robert T. Jew Attorney a 55 Main Street Cortland, NY 13045 RE: ENGMAN v COUNTY and MOBBS Dear Mr. Jewett: Enclosed herein is Record an Appeal in the above matter. Please review and if satisfactory, please sign the - ulation on the last page and returr�'me at your earliest convenience. Very truly yours, Robert C. Mulvey RCM: sec enc. (Mr. Jewett, there are two copies -- one for you to sign and return, and one to keep.) EXHIBIT D SUPREME COURT STATE OF NEW YORK COUNTY OF TOMPKINS -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, vs. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. -------------------------------------- STATE OF NEW YORK } COUNTY OF CORTLAND SS: REPLY AFFIRMATION INDEX NO. 88-511 R.J.I. NO. 88-0365 HON. ROBERT S. ROSE ROBERT T. JEWETT, deposes and says under penalty of perjury as follows: 1. That he is the attorney for the plaintiffs in the above - entitled action, Herbert J. Engman and Ronda C. Engman, that he has handled the matter from its inception and is fully familiar with all the pleadings and proceedings heretofore had herein. 2. That this Affirmation is submitted in opposition to the defendants' motion to strike the above -entitled action from the Calendar of this Court and to vacate the Note of Issue filed herein by the plaintiffs, a copy of which Note of Issue is attached to the defendants' motion papers as Exhibit "A" thereto. 3. That all necessary and proper preliminary proceedings referred to in paragraph 1 of the Statement of Readiness have been completed or the defendants have had reasonable opportunity to complete the same. 4. That the defendants on June 23, 1988 moved for summary judgment which motion was denied by Order of the Court dated r December 16, 1988 and the defendants are pursuing an appeal from said Order of this Court denying the defendants' motion for summary judgment as in more particularly alleged in the moving affidavit of Robert C. Mulvey sworn to the 1st day of February, 1989. 5. That, the pendency of the aforementioned appeal not withstanding, the plaintiffs are entitled to a prompt trial on the merits. 6. That it does not appear from the defendants' moving affidavit that it is alleged that the action is unready for trial in any other respect or regard. WHEREFORE, the plaintiffs request that the defendants, motion to strike the action from the trial calendar and to vacate the Note of Issue be, in all respects, denied. W., The undersigned understands that the 4alt�ing of a knowingly false statement is punishable under the laws of the State of New York as a Class "A" misdemeanor and with such knowledge affirms the information above -reacted. t 9A-t7\�, _W7 ROBERT T. JE T 1 RECEIVED TOMMN r'f (i i Rik Ho ZZ 2 so ph '85 v rn rn SUPREME COURT STATE OF NEW YORK COUNTY OF TOMPKINS -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS■ Commissioner of Public Works, Defendants. STATE OF NEW YORK } COUNTY OF CORTLAND } SS: AFFIDAVIT OF SERVICE I, ROBERT T. JEWETT, being duly sworn, depose and state as follows: 1. That I am over the age of 1S years and not a party to this action. 2. That on the 2nd day of March, 1989 1 served a copy of the Reply Affidavit dated March 2, 1989 on Robert C. Mulvey, attorney for the defendants by delivering a copy of the same to the Tompkins County Attorneys Office at The Tompkins County Courthouse in Ithaca, New York 14850. Signed and sworn to before me this 2nd day of March, 1989. NOTARY PUBLIC Qom* ROBERT T. JE TT SUSAN E: COOK 43otary F.blic. Sfa:e of ;Stew York No, 4907187 Qualified in Tompkins Countyp� C M-IWOn OKPir►s No-, 30. 19, TJe� r"l-GIVED U 1� MAR 6 1989 ROSE -SUPREME C06RT JUSTICE r. Ln r--j AOW Sir: Take notice of an of which the within is a copy, duly granted in the within entitled action, on the day of 19____ , and duly entered in the office of the Clerk of the County Of on the day Dated ROBERT I. W ILLIAMSON Attorney for County of Tompkins S 6 Office and Post Office Address ` County Court House 320 North T'ioga Street ITHACA, NEW YORK I4850 � �4vt1 f 9 Cti7 M y -Z Imams To C► coca �t'"f Attorney ik)r n,wHx No. 88-511 YEAR 19'— STATE OF NEW YORK SUPREME COURT County of TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs _Vs - COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants O R D E R C. Mul e ROBERT XXX1 MX Attorney for County of Tompkins Office and Post Of&re Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Due and personal service of the within 1S admitted this daffy of 19 Attorney for n �'rs°1 5'011 9- P- N rt N' ¢" 0 to 0 nmhn � • n n ❑ 0 r C)a � p `�u n D o � r �_ n 44 n C C1 w a sJ p- gL < A- �' I p g o of Q07 n a � y FS � w o ro D H rL n w Dr N 00 z N p-. En v M OQ ro a �r 0 0 a z 0 •n M 21 WC es ti yr 01aU of New Pork, COUNTY of OF (PERSONAL VERIFICATION) ss.: being duly sworn deposes and says thathe is in this action; that —he read the foregoing and knows the contents thereof,, that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this _day of 19 O#afe of Wont Park,, COUNTY OF OF (CORPORATION VERIFICATION) being duly sworn, deposes and says that ___he is the of the corporation named in the within entitled action; that —he has read the foregoing and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters— he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponenes belief as to all matters in the said not stated upon h awn knowledge, are investigations which deponent has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h—duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this —day of 19 j t1a1r of Km Pork, (AFFIDAVIT OF PERSONAL SERVICE) COUNTY OF SS.: of being duly sworn, deposes and says; Z am over 18 years of age, not a party to this action and reside in the State of New York. That on the day of at M. at New York I served the upon therein named by delivering to, and leaving personally with said a true copy of each thereof dependent describes person served as aforesaid to the best of depondents ability at the time and circumstances of service as follows: sex: color: hair: app, age: app. ht: appt. wv.. other identifying features That at the time of such service Z knew the person so served as aforesaid to be the same person mentioned and described in the said in this action. Sworn to before me this day of NOTARY PUBLIC At a Motion Term of the Supreme Court of the State of New York, held in and for the County of Tompkins, at Ithaca, New York, on the 10th day of March, 1989. PRESENT: Hon. Robert S. Rose, STATE OF NEW YORK Justice Presiding SUPREME COURT COUNTY OF TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs ❑ R D E R -vs-- Index No. 88-511 RJI No. 88-0356 COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants The defendants having moved for an order striking the above - entitled action from the calendar of this Court and vacating the Note of Issue filed herein, NOW, upon reading and filing the Notice of Motion dated February 1, 1989; the affidavit of Robert C. Mulvey, Esq., duly sworn to February 1, 1989; the reply affirmation of Robert T. Jewett, Esq., sworn to March 2, 1989, in opposition; and upon all the proceedings and papers heretofore had and filed herein, and upon the decision of this Court dated March 17, 1989, it is ORDERED, that the defendants' motion to strike the Note of Issue herein be and is hereby denied without costs, and it is further ROBERT C MULVEY COUNTY ATTORNEY C0i1RT HOUSE ITHACA NY ORDERED, that the trial of this action is stayed pending a determination of defendants' appeal of this Court's order denying defendants' previous motion for summary judgment. Signed: April 3 1989 Binghamton, New York. ENTER: formwffi cmily, 91k flemded on rho... ..........(-0-- ... Day of.......;!`:l:.y.`.r.,..� ;...�. ..... .� .r� aPao ...a......r................... t§iId BiCcl.{Il't* .........� ROBERT C. MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA NY STATE OF NEW YORK SUPREME COURT CHAMBERS COURT HousE BI NGHAMTON, NEW YORK 13901 R013EPT & ROSE JUSTICE Robert E. Jewett, Esq. Attorney for Plaintiff 55 Main Street Cortland, New York 13045 Richard C. Mulvey, Esq. Attorney for Defendants Tompkins County Court House Ithaca, New York 14850 March 17, 1989 LETTER DECISION 1-607) 77c-2473 Re: Herbert J. Engman and Ronda C. Engman v County of Tompkins and William J. Mobbs Tompkins County RJI No. 88-0365. Index No. 88-511. Tompkins County Motion Term 3/10/89 Counsellors: In the above -entitled action, defendants move for an order striking the Note of Issue (filed on February 3, 1989) on the ground that this action is not ready for trial by virtue of the pending appeal of this court's order which denied defendants' previous motion for summary judgment. Although I will not strike the Note of Issue, I will exercise my discretion under CPLR 5519(c) and stay the trial of this action pending a determination of defendants' appeal. No costs are awarded. Submit order. ROBERT S. AOSE JUSTICE S(1'RERE COURT The following papers have been forwarded to the Cleric of the County of Tompkins for filing: 1. Notice of Motion dated February 1, 1989 with supporting papers. 2. Reply Affirmation of Robert T. Jewett dated March 2, 1989. 3. Vetter Decision. 604 Rd r J TOMPKINS COUNTY SUPREME COURT TOMPKINS COUNTY COURTHOUSE 320 NORTH TIOGA STREET ITHACA, NY 14850 (607)272-0466 PRETRIAL NOTICE February 16, 1989 ROBERT C. MULVEY, CO. ATT` 320 N. TIOGA ST. ITHACA, N. Y. 14850 Re= Ease 4: 88-0356-A, Index *: 88-511 ENGMAN, HERBERT J. AND--vs..TOMPKINS COUNTY AND MOBBS, RONDA C. WILLIAR , J., COMMISSIONER OF PUBLIC WORKS OF TOMPKINS COUNT NEW YORK Please be advised that the case described above is scheduled to be pretried in Chambers on April 18, 1969, at 11:00AM before the Hon. Robert S. Rose, J.S.C.. Adjournments will be granted only in exceptional cases and only by permission of the court -- not by consent of counsel. cc: Other attorneys of record Very Truly Yours, NANCY M. JOCH Chief Clark e_,=-�:_� �`. Sai;_,;;��� _jai-fTC► :�1 " IOSUM3 fo jua uo3 Aq to%J -- janon alp +v UOISSTW aad Aq I uo pus sasen j euojjdaDxcam ul A l u y'7vs-iJ":= _ear^ �� T T Ttf �� Uo �%U �➢ O �YH ajofa WtjOO:j r l ' 68. : `8T 3 T dV uo s_ aqti eq3 u T paTila.aid aq oq palnpa'gDs _ - aAoqe pagTri Sap aseD au } q`c-_3 PaSTApe a^ aseaTd AMA m3N si_E waNO I .c_S I WWOO ` " r w I l ; i f"'•: C; ' tl ' SaeOW � ENV :{imnm SN I':aMO! " " S " " UNV " r 183SHEH `NHS= ON3 Tir-es w mapul 'C_9 t o-88 w a= 3 :a-j SAT ' qT AAen AqaA 3S I l N W 18i- _ ; � ion f C AN ` Ltij'"7VH L z IV s . �q I� tJ rC g3j Lj, T OMPK I NS COUNTY SUPREME COURT T O� iPK I NS COUNTY COURTHOUSE 320 NORTH T I OGA STREET ITHACA, NY 14850 (607 )272--D466 PRETRIAL NOTICE November 21, 1999 ROBERT C. MULVEY, CO. ATTY. 520 N . T I OGA ST . ITHACA, N. Y. 14850 Re: Case # : 89-056-A . Index # : 68-51 1 ENGMAN, HERBERT J. AND ..vs..TOMF'F-__INS COUNTY AND MOBBS RONDA C. WILLIAM J., COMMISSIONER OF PUBLIC WORKS OF TOMPK I NS COUNT NEW YORK Please be advised that the case described above is scheduled to be pretried in Chambers on January 2, 19905 at 9:50AM before the Han. Robert S. Rose. J.S.C.. Adjournments will be granted only in exceptional cases and only by permission of the court -- not by consent of counsel. Very Truly ''ours, NANCY M. JOCH Chief Clerk cc: Other- attorneys of record I 0 3 OMP K I it S COUNTY SUPREME COURT TOt1PK I NS COUNTY COURTHOUSE l20 NORTH TIOGA STREET I T HACA , NY 14050 (607)272-0466 PRETRIAL NOTICE November- 21, 1989 ROBERT T. JEWETT JJ MAIN ST. CORTLAND, N. Y. 1T045 Re: Case #: 88-0156-A index #: 88-511 ENGMAN, HERBERT J. AND ..ys..TOMPKINS COUNTY AND MOBBS. RONDA C . W I LL I Ai � J . , COMMISSIONER OF PUBLIC WORKS OF TOMPKINS COUNT NEW YORK Please be advised that the case described above is scheduled to be oretried in Chambers on January 2, 19905 at 9:50AM before the Hon. Robert S. Rose, J.S.C.. Adjournments will be granted only in exceptional cases and only by permission of the court -- not by consent of counsel. cc: Other attorneys of record Very Truly Yours, NANCY M. JOCH Chief Clerk 69- s// RECf:IvEf) tompxINS COUNTY CI E RK by 22 1 137 m '89 ti J. 4 ROBERT C.MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA. N.Y. ORMA� RECORD STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION : THIRD DEPARTMENT ----------------------------------------------------------------- ------------------------------------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -Respondents -vs- -5-1 I 0 3 -6 COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants -Appellants. RECORD ON APPEAL ROBERT C. MULVEY Tompkins County Attorney Attorney for Defendant -Appellant Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 (607) 274-5546 ROBERT T. JEWETT Attorney for Plaintiffs -Respondents 55 Main Street Cortland, New York 13045 NEW YORK SUPREME COURT APPELLATE DIVISION, THIRD DEPARTMENT BOX 7288, CAPITOL STATION ALBANY, N.Y. 12224 MICHAEL J. NOVACK CLERK Robert C. Mulvey, Esq. Tompkins County Attorney County Court House Ithaca, New York 14850 518-474-3609 December 6, 1989 Re: #58601 - Engman, et al. v County of Tompkins, et al. Dear Mr. Mulvey: Order submitted in the above -entitled case was signed and entered in this office today. A certified copy is enclosed herewith. The remittitur consisting of the original record on appeal and certified copy of the order, together with a copy of this letter, is being forwarded to the clerk of the court or agency from which the appeal was taken for filing pursuant to CPLR 5524. Very truly yours, �W MiChMI J Novack Clerk MJN:jfm Enclosure cc: Hon. Rachael S. Pierce Tompkins County Clerk TABLE OF CONTENTS Statement pursuant to CPLR §5531 . . . . . . . . . . . . . . 1 Notice of Appeal dated December 16, 1988 . . . . . . . . . . 2 Order appealed from dated December 6, 1988 . . . . . . . . . 3 Decision dated September 23, 1988. . . . . . . . . . . . . . 4 Notice of Motion dated June 23, 1988 . . . . . . . . . . . . 8 Affidavit of Robert C. Mulvey sworn to June 23, 1988 . . . . 9 with Exhibit A - Summons . . . . . . . . . . . . . . . . 12 Exhibit B - Verified Complaint . . . . . . . . . . 13 Exhibit C - Amended Verified Answer. . . . . . . . 21 Exhibit D - Verified Reply to Counterclaim . . . . 26 Exhibit E - Deed to Herbert J. Engman and Ronda C. Engman. . . . . . . . . . . . 28 Exhibit F - Survey Map . . . . . . . . . . . . . . 29 Exhibit G - Pages 22 thru 27 of Examination Before Trial . . . . . . . . . . . . . 30 Exhibit H - Letter to Ronda Engman from William J. Mobbs . . . . . . . . . . . 36 Exhibit I - Letter to Tompkins County Highway Department from Ronda Engman . . . . . 37 Exhibit J - Letter to Ronda Engman from Robert Williamson. . . . . . . . . . . 39 Answering Affidavit of Herbert J. Engman and Ronda C. Engman sworn to July 9, 1988 . . . 40 Certification Pursuant to CPLR §2105 . . . . . . . . . . . . 44 ROBERT C.MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA. N.Y. STATE OF NEW YORK : SUPREME COURT APPELLATE DIVISION: THIRD DEPARTMENT -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -Respondents STATEMENT PURSUANT TO CPLR §5531 -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, M Defendants -Appellants. a x-------------------------------------- 1. The index number of the case in the court below is 88-511. 2. The full names of the original parties are Herbert J. Engman and Ronda C. Engman, plaintiffs; and County of Tompkins and William J. Mobbs as Commissioner of Public Works, defendants; there has been no change in the parties. 3. The action was commenced in Tompkins County Supreme Court. 4. The action was commenced on December 11, 1987, by ser- vice of a summons and complaint; the answer of the defendants was served on January 19, 1988. 5. The nature and object of the action are as follows: mandamus directing the defendants to remove pavement, drainage pipe, and shoulder along a County highway. 6. This appeal is from an order made by the Hon. Robert S. Rose, entered on December 13, 1988. 7. This appeal is made on the original record. The appen- dix method of appeal is being used. Y ROBERT C.MULVEY COUNTYATTORNEY COURT HOUSE -1- ITHACA. N.Y. Y ZOBERTC MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA NY STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, Vs. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ------------------------------------- NOTICE OF APPEAL Index No. 88-511 RJI No. 88-0356 Hon. Robert S. Rose PLEASE TAKE NOTICE that the above -named defendants, County of Tompkins and William J. Mobbs as the Commissioner of Public Works, hereby appeal to the Appellate Division of the New York State Supreme Court in and for the Third Department from an order entered in the above -entitled action in the office of the Tompkins County Clerk on December 13, 1988, which order denied the defendant's motion for summary judgment, and this appeal is taken from each and every part of said order, as well as the whole thereof. Dated: December /�, , 1988 n TO: Rachael Pierce Tompkins County Clerk Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 Robert T. Jewett, Esq. Attorney for Plaintiffs 55 Main Street Cortland, New York 13045 ROBERT C. MULVEY Tompkins County Attorney Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 -z - :.MULVEY %ttORNEY HOUSE ;A NY At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial Dis- trict, at the Tompkins County Court- house in the City of Ithaca, New York, on the 5th day of August, 1988. PRESENT: Hon. Robert S. Rose, Justice Presiding STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS ------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. ------------------------------------- O R D E R Index No. 88-511 RJI No. 88-0356 The defendants having moved for summary judgment in favor of the defendants and against the plaintiffs pursuant to §3212 of the CPLR. In support of the motion, the defendants having sub- mitted a Notice of Motion dated June 23, 1988; the affidavit of Robert C. Mulvey, Esq., sworn to June 23, 1988, with attached exhibits; and the plaintiffs, in opposition, have submitted the affidavit of the plaintiff sworn to July 9, 1988. Upon the foregoing papers, and upon all the proceedings had herein, and upon hearing Robert C. Mulvey, attorney for the de- fendants in support of the motion, and Robert T. Jewett, attorney for the plaintiffs in opposition, and upon the decision of this Court dated September 23, 1988, and on motion of Robert Jewett, attorney for the plaintiffs, it is ORDERED, that the defendants' motion is in all respects denied without costs. Signed: December 6 , 1988 Binghamton, New York. on. Robert ose ENTER WA therein named by delivering to, and leaving personally with said upon q ROBERT S. ROSE SUPREME COURT .JUSTICE BINGHAMTON, NEW YORK 13901 At a Motion Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Court House in the City of Ithaca, New York, on the 5th day of August, 1988. PRESENT: HONORABLE ROBERT S. ROSE, Justice Presiding. STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, INDEX NO. 88-511 v RJI NO. 88-0356 COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, DECISION Defendants. f-M-674 OJ ROBERT T. JEWETT, Attorney for Plaintiffs, 55 Main Street, Cortland, New York 13045. ROBERT C. MULVEY, Tompkins County Attorney, Attorney for Defendants, County Court House, 320 North Tioga Street, Ithaca, New York 14850. RECEIVED S E P 2 8 1988 COUNTY ATTORNEY -.f- -2- ROSE, J. Plaintiffs commenced this action to obtain an order directing defendants to remove certain pavement, drainage pipe and shoulder that were installed adjacent to plaintiffs' property when South Danby Road was widened in 1987. Plaintiffs allege that in widening the road defendants r encroached upon plaintiffs' property. Alternatively, plaintiffs seek money damages to cover the cost of restoring their property to its condition prior to the widening of the road. In their answer and counterclaim, defendants deny encroaching upon plaintiffs' property and seek an order directing plaintiffs to remove a stone wall that is alleged to be within Tompkins County's right of way. Defendants move for summary judgment dismissing the complaint and directing the removal of the stone wall on the grounds that plaintiffs have no claim to the land lying within a three -rod wide right of way along South Danby Road. Defendants argue that the County obtained a three -rod wide right of way pursuant to section 189 of the Highway Law and that plaintiffs could not have acquired ownership of the land between their westerly boundary line and the- easterly edge of the paved portion of the road because land held by a municipality in its governmental capacity cannot be lost by adverse possession. Plaintiffs argue that the County's right of way is only one rod wide because that has been the extent of the public's use of the road. Plaintiffs also maintain that they acquired ownership of i the land between the boundary line described in their deed and the former edge of the paved portion of the road by adverse possession against their L predecessor in interest, Opal S. Rajola, rather than against the County. The fundamental issue here is the width of the County's right of way. As construed by the court in Matter of Usher v Mobbs (129 Misc 2d -3- 529 [Sup Ct, Tompkins County, 19851), section 189 of the Highway Law creates an easement limited to the lands actually used by the public and not automatically to the width of three rods prescribed in the statute. _ Here, as in Matter of Usher v Mobbs'(su ra, at p 532), there is a triable issue of fact as to the extent of the actual use of the road for the minimum ten-year period prescribed in section 189. If the use of the road created a right of way that is only one rod wide and if plaintiffs can establish their ownership of the land between their property acquired by grant and the County's right of way, then plaintiffs would be entitled to the relief sought in their complaint. If the County can establish that a wider right of way was obtained by public use during the prescriptive period or that it is the owner of the land between plaintiff's property and the right of way, then defendant would be entitled to dismissal of the complaint and an order directing the removal of those portions of the stone wall that are within the right of way. Since the width of the right of way and plaintiffs' claim of adverse possession present triable issues of fact, none of the parties is entitled to summary judgment. Accordingly, defendants' motion is denied without costs. Submit order. UR�OBERT S. ROSEJUSTICE SUPREME C(� DATED: September 23, 1988, Binghamton, New York. -4- The following papers have been forwarded to the Clerk of the County of Tompkins for filing: 1. Notice of Motion dated June 23, 1988 with supporting papers. 2. Answering Affidavit of Hetbert J. Engman and Ronda C. Engman dated July 9, 1988. 3. Decision. ROBERT C MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA. N Y STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS --------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants. --------------------------------- NOTICE OF MOTION Index No. 88-511 RJI No. 88-0356 Hon. Robert S. Rose PLEASE TAKE NOTICE, that upon the affidavit of Robert C. Mulvey, sworn to the 23rd day of June, 1988, the depositions of the parties hereto, and all the papers and proceedings heretofore filed and had herein, the undersigned will move this Court at a Motion Term to be held at the Tompkins County Courthouse in Ithaca, New York, on the 5th day of August , 1988, at 9:30 in the forenoon of that date, or as soon thereafter as counsel can be heard for a judgment dismissing the complaint pursuant to CPLR §3212 upon the ground that the cause of action has no merit, and in favor of the defendants on the counterclaim, and for such other and further relief as to the Court may seem just, proper, and equitable. PLEASE TAKE FURTHER NOTICE, that pursuant to CPLR §2214(b), answering affidavits, if any, are required to be served upon the undersigned at least seven days before the return date of this motion. Dated: June z-3 , 1988 Ithaca, New York TO: ROBERT T. JEWETT Attorney for Plaintiffs 55 Main Street Cortland, New York 13045 (607) 753-0314 ROBERT C. MULVEY Tompkins County Attorney County Courthouse 320 North Tioga Street Ithaca, New York 148SO (607) 274-5546 - Y_ STATE OF NEW YORK : SUPREME COURT COUNTY OF TOMPKINS --------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -vs- COUNTY OF TOMPKINS and WILLIAM J. mu-mS, Cow iss_on er of Public Works, Defendants. --------------------------------- STATE OF NEW YORK ) ss: COUNTY OF TOMPKINS ) A F F I D A V I T Index No. 88-511 RJI No. 88-0356 Hon. Robert S. Rose Robert C. Mulvey, being duly sworn, deposes and says: 1. That he is the County Attorney in and for the County of Tompkins, and makes this affidavit in support of the defendants' motion to dismiss the complaint herein upon the ground that the cause of action has no merit. 2. That the summons and complaint in this action were served upon the defendants on or about the llth day of December, 1987. The action seeks a court order directing the defendants to remove all pavement, drainage pipe, and shoulder from the east side of South Danby Road (County Road 125) that extends beyond the old edge of the pavement, or in the alternative, an award in favor of the plaintiffs and against the defendants for money damages in the amount of $20,000 to repair damage and return the condition of plaintiffs' property to that prior to May 1, 1987. (See summons and complaint attached hereto as Exhibits A and B respectively.) 3. That an amended verified answer and counterclaim was served upon the plaintiffs' attorney on or about January 19, 1988 (Exhibit C), with said counterclaim seeking the removal of plain- tiffs' stone wall from the right-of-way of County Road 125. The plaintiff served a verified Reply to said counterclaim on or about February 8, 1988 (Exhibit D). )BERT C.MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA NY ROBERT C. MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA. NY 4. That the deponent believes that the cause of action set forth in the complaint has no merit. 5. That the facts with regard to the cause of action alleged in the complaint and with respect to the defendants' counterclaim are as follows: a. On May 27, 1977, the plaintiff's acquired title to a parcel of real property adjoining County Road 125 as described in a deed recorded in the Tompkins County Clerk's Office in Libre 557 of Deeds at page 666, a copy of which is attached hereto as Exhibit E. The description of the premises set forth in said deed specifically refers to a survey made by Weiler Associates dated October 12, 1974, a copy of which is attached hereto as Exhibit F. Said description and survey map readily establish that the westerly boundary of said parcel is the same as the easterly boundary of the County three -rod right-of-way as prescribed by Section 189 of the Highway Law. b. That upon information and belief said highway has been open to the public and has been maintained by the County for a period of at least ten years both prior to and since the plain- tiffs' acquisition of said parcel. C. That in or about June of 1978 the plaintiffs com- menced construction of a stone wall within the area set forth on said survey map as the County right-of-way. The plaintiffs did not consult with any officials of the town or County prior to construction of the wall. The plaintiffs have estimated that it took three or four years to complete the entire wall, most of which lies within the County right-of-way. After the first sec- tion of the wall was completed, plaintiff Ronda Engman received notice from the County Highway Superintendent, Ward Hungerford, that the proposed additional sections as described by plaintiffs would be in the County right-of-way. Shortly thereafter, in spite of actual notice from the County, the plaintiffs resumed construction and did in fact construct a stone wall within the County right-of-way. (See pages 22 - 27 of the deposition of Ronda C. Engman of March 29, 1988, attached hereto as Exhibit G.) d. The plaintiffs have received written notice from CBERT C. MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA. N.Y County officials stating that said wall was within the County right-of-way. Exhibit H attached hereto is a letter dated April 27, 1984 from defendant Mobbs to plaintiff Ronda Engman confirm- ing that said wall was in the County right-of-way. Exhibit I attached hereto is a letter dated July 26, 1984 from plaintiff Ronda Engman, in effect refusing to remove said wall. Exhibit J attached hereto is a letter dated August 20, 1984 from the County Attorney to plaintiff Ronda Engman stating the extent of the right-of-way. 6. That based on the foregoing undisputed facts, the plain- tiffs have absolutely no standing to advance any claim of title to those lands lying within the County's three -rod right-of-way as shown on Exhibit F. 7. That based on the foregoing undisputed facts, the Court must direct the plaintiffs to remove said stone wall pursuant to Section 103-a of the Highway Law. 8. That no previous application for the relief herein requested has been made. WHEREFORE, your deponent respectfully asks for an order dismissing the complaint in this action and directing that summary judgment be entered in favor of the defendant County of Tompkins in its counterclaim against the plaintiffs, and for such other and further relief as to the Court may seem just and proper, together with costs and disbursements of this action. (_ ad&z� Robert C. Mulvey Tompkins County Attorney Sworn to before me this ,Z�/A day of June, 1988. Notary Public SUSAN E: KLIMM Notary Public, State of Ne'.v York Qualified in Tompkins County N*. 4107187 Commission exeires LC 31D. C 104— Sux—ns without Notice, Bl. k Court. 9 "3 Personal Service. —� STATE OF NEW YORK SUPRELHE COURT TMVKIbiS COUNTY HERBERT J. ENG4MAN and RONDA C. ENG=4, GOrYI,IGNT 1973 Sy JULIUS BLUM6ERG. INc.. LAW BLANKI PUBLISHERS Plaintiff S TOMPRZNS COUt-11PY ane, against WILLIAM J. MOBBS, Commissioner of Public Worl: . of `1'a:n�:kin�. Cc,utzty, New Yorn Defendant S Index No. Plainti$ s designates TOMPKINS County as the place of trial The basis of the venue is residence of plaintiffs o312Iii2 ug Plaintiffs resides at 571 South Danby Road spencer, :dew Yor1c County of L Vyyy:ri>, �a.w To the above named Defendant Vou arr 4rrrhy 5lt miltuh to answer the complaint in this action and to serve a copy of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on the PlaintirTs Attorney(S) within days after the service of this summons, exclusive of the day of service (or within 30 days after the Service is complete if this summons is not personally delivered to you within the State of New York); and in Cale of yottr failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. iT Bated, i:. c�.:1�� r J.'� . 1c' Z f '203E:2''' 1' . JsS7E 1 1 Defendant's address: fitrorney(3Q for Plaintiff PQst:ric`� ��� �� Office and Post Office Address 5 t'13�j :. rr 11 5 V i `3 C t,. Ithaca, New lur;c 1.1030 RECEIVED Cortland, NeYork 13045 Tolepaone: (607) 753-0314 DEC 11 1997 -roMPKINS ;AUNTY PUBUG WORAS -12- v 'p 2 0 ►- ram. W o P� 8q4C n 0 3 • SUPREME COURT STATE OF NEW YORK TOMPKINS COUNTY ------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, - against - TOMPKINS COUNTY and 'WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, New York, Defendant. ---- --------------------------------- VERIFIED COMPLAINT Index No. RJI No. The plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, for their Verified Complaint set forth as follows: FIRST CAUSE OF ACTION FIRST: That at all times hereinafter mentioned the plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, were citizens of the United States of America and resident electors and taxpayers of the County of Tompkins, Town of Danby and State of New York and that they reside at 571 South Danby Road, Town of Danby, County of Tompkins, New York. SECOND: That at all times hereinafter mentioned the defendant, WILLIAM J. MOBBS, was 'and is the Commissioner of Public Works of the County of Tompkins and that the Tompkins County Department of Public Works and the Tompkins County Highway Department are subject to and under his command, control, direction and supervision. THIRD: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by grant of a cer- tain parcel of land known as 571 South Danby Road located in the RECEIVED DEC 11 1987 TOMPKINS COUNTY _i3- �UGLil� Vwn of Danby, County of Tompkins and State of New York, the deed to which parcel is recorded in Book 557 of Deeds at page 666 in the Tompkins County Clerk's Office and a true copy of which deed is attached hereto as Exhibit "A". The frontage facing South Danby Road of the aforementioned parcel is 216.50 feet. South Danby Road is at all points a Tompkins County highway known as Tompkins County Highway number 125. FOURTH: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by adverse possession located at 571 South Danby or otherwise of a certain parcel of land also Road in the Town of Danby, County of Tompkins and State of New York beginning at an iron pin 2316 ± feet located and described as follows: southerly from the centerline of Peters Road (being the southwest corner of lands now or formerly of M. Dagg art); thence running S 240 00 E a distance of 276.50 feet to a chiseled cross in a concrete culvert; thence running southwesterly to the edge of the pavement of South Danby Road as it was constituted on May 1, 1987 prior to the commencement of the current widening project; thence running northwesterly along the aforedescribed edge of the pavement of South Danby Road a distance of 276.50 feet to a point; thence running northeasterly to the iron pin at the point and place of beginning. _ FIFTH• That prior to May 1, laS7 the aforedescribed edge of the pavement of South Danby Road in front of the plaintiffs afore,- described property was located eight feet from the centerline of said South Danby Road, which edge is hereinafter referred to as the "old edge of the pavement". Prior to May 1, 1987 the County of Tompkins had never widened South Danby Road beyond the old edge of the . road in front of the plaintiffs' aforementioned property nor ever main tained a shoulder thereto. SIXTH: That the land described in paragraph four above had never before May 1, 1987 been used' by the County of Tompkins for highway or other purposes. SEVENTH: That the land described in paragraph four above has been used as a lawn by the plaintiffs herein and their predecessors in interest continually and exclusively for the length of time and in the manner prescribed by law so as to acquire title by adverse 7 possession. EIGHTH: That since May 1, 1.987 the Tompkins County Highway Department has widened the aforedescribed South Danby Road pavement of the east side of the road from 8 feet to 10 feet, 16 inches in some place to 11 feet, 2 inches in others and have added drainage pipe and a shoulder that extend up to an additional 7 feet onto the plain- tiffs' lawn. As a result of the aforementioned widening project the County has wrongfully and unlawfully taken land of the plaintiffs ranging from 4 to 7 feet in depth along the entire 276.50 feet of plaintiffs' road frontage. The taking was totally without the plain- tiffs permission and against their expressed desires. Neither Tompkins is County nor any other governmental agency has compensated the plaintiffs in any manner. NINTH: That the plaintiffs have searched all applicable records in the Tompkins County Clerk's Office and states that there is no re- cord of the County of Tompkins or any other govermental unit having ever obtained title to the land underlying the road by purchase or grant or by any other means recognized by section 118 of the Highway Law of the State of New York. — /.5- - TENTH: That there is located on the aforedescribed lands of the plaintiffs about 15 feet from the old edge of the pavement a well which is the sole source of water to the home of the plaintiffs. ELEVENTH: That the aforementioned well is located at the only site on the parcel permitted therefore by the Tompkins County Depart- ment of Health and by the applicable laws of the State of New York and of Tompkins County as is more particularly explained below. TWELFTH: That a creek runs behind the plaintiffs home and roughly parallel to the road. The applicable laws of the State of prohibit installation of septic New and Tompkins County systems within 100 feet of a creek. The law also prohibits the in- stallation of wells within 100 feet of a septic system. Given the configuration of the plaintiffs' parcel, when the aforerecited laws governing the location of wells and septic systems are applied, the only legal (and environmentally safe) site to locate the well is at a point approximately 15 feet from the old edge of the payment c:n South Danby Road. THIRTEENETH: That there is also located on the lands of the plaintiffs a certain stone wall which was built by the plaintiffs and which runs in a generally north -south direction the entire road frontage of the plaintiffs parcel at a distance of approximately 5 the old edge of the road. FOURTEENTH: That the defendant has by widening the road as arable damage and will cause further aforedescribed caused irrep irreparable damage to the property of the plaintiffs in that snow plowing has and will continue to deposit road salts and automobile fuel contaminates on top of the well of the plaintiffs. If the l6- which the road has been used for road purposes prior to May 1, 1987. TWENTY-FIRST: That the road prior to May 1, 1987 was sixteen (16) feet in width, that is to say eight (8) feet from the center of the road to the east edge of the road and eight (8) feet from the center to west edge of the road and that`the road has never been wider. TWENTY-SECOND: That the wrongful taking of the plaintiffs' lawn aforedescribed has and will substantially lessen the enjoyment by the Plaintiffs and their successors of the property which is used solely as their personal residence. That as a result of the afore- ,,::,�,.:.. aa3d ,xrOng ful taking and the construction of the highway described in paragraph eight above, the flow of rain water from the highway has been substantially increased and has been diverted.onto plaintiffs' lawn and into their basement. In addition, snow plowing of the road in its widened configuration wi11 result in snow, road salt and other contaminates being dumped on top of the plaintiffs well which is their sole source of water. TWENTY-THIRD: That the wrongful conduct of the defendant afore - described has and will cause irreparable injury to the plaintiffs and will render any judgment for money damages obtained by the plain- tiffs of no avail and or ineffective. TWENTY-FOURTH: That the plaintiffs have a right to the final re- lief. of mandamus against the defendant. SECOND CAUSE OF ACTION For a second, separate and distinct cause of action the peti- tioners reallege each and every allegation set forth in paragraphs numbered "1" through 1124" above. - 4 - TWENTY-FIFTH• That the wrongful conduct of the defendants diminished the value of the plaintiffs' property alleged above has to the plaintiffs in the amount of and otherwise caused damage $20,000.00. WHEREFORE, the plaintiffs respectfully pray for the following relief: 1. That the Court Order the defendants to remove all pave - oulder from the east side of South Danby ment, drainage pipe and sh Road that extends beyond the old edge of the pavement _ .. F­ n P o f t h e tt 2. In the d L6t:I1la1,L Vc I ...__ - ,t'`t against the defendants moneydama �s in the amount plaintiffs and ag g ' f of $20,000.00 to repair damage and return the condition of the pro- t perty to that prior to May 1, 1987; and, 3. That the Court grant to the plaintiffs and against the �. t relief as to the Court seems just .,;defendants such other and differen l and proper. ROBERT T. JEWETT ¢r Attorney for Plaintiffs office and Post Office Address 55 Main Street Cortland, New York 13045 1'a j Telephone: (607) 753-0314 19 , STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, HERBERT J. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. H E R B E R T ENGM Sworn to before me this �( ay of December, 1987. ,X I cf Prow YorN NOTARY PUBLIC Caamcd at Tom kv0--sty` Camrn(OylUn zx *W ,ate 30. 12... STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, RONDA C. ENGMAN being duly sworn, depose and say: I am the foregoing Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. RONDA C. ENGMAN Sworn to before me this 'day of December, 1987. ESTHER WM NotWY P*bA*- "Ir d Now York p&L 4:_1417 C tY QuanNW �TO� r,�� 9.C. emmiaslon NOTARY PUBLIC rlq - plaintiffs' well is contaminated in this manner, their home will be rendered uninhabitable in that there is no other legal or safe place to locate their well. FIFTEENTH: That the defendant has by widening the road as aforedescribed to a distance of 5-feet from the old edge of the pavement has caused substantial damage and will continue to cause damage to 'the aforedescribed stonewall by striking it with con- struction equipment and by the erosive effects of plowed snow and ice Which would be heaped upon the wall.�`t`f�< a��rt•�d� �ty''�L- SIXTEENTH: That the availability of fresh and pure water would render their parcel inhabitable. The aforemetioned stone wall serves to buffer the plaintiffs' home from the intrusion of the public and is a thing of beauty which contributes greatly to the plaintiffs' enjoyment of their home. SEVENTEENTH: That all the land to the east of the old east edge of the pavement of. the road along the entire length of the plaintiffs' road frontage aforedescribed belongs to the plain- tiffs. EIGHTEENTH: That neither the County of Tompkins nor any other govermental agency has ever undertaken proceedings to acquire the land underlying the road by condemnation although the section 120 of the rics -Highway Law gives the County the power and authority to acquire land for roads and drains and ditches associated therewith by condemnation where attempts at purchase from private owners fail. NINETEENTH: That.any right the County of Tompkins has obtained to the use of the land underlying the road was obtained solely by usage or easement. TWENTIETH: That any right the County of Tompkins may have ob-- tained for passage over the road is limited in width to the width to -zo- . NULVEY 'ORNEY )USE NY STATE OF NEW YORK SUPREME COURT : COUNTY OF TOMPKINS ----------------------------------- HERBERT J. ENGMAN and RHONDA C. ENGMAN, Plaintiffs -against- WILLIAM J. MOBBS, Commissioner of Public Works, and TOMPKINS COUNTY, Defendants ----------------------------------- AMENDED VERIFIED ANSWER Index No. RJI No. The defendants Tompkins County and William J. Mobbs, as Commissioner of Public Works of Tompkins County, New York, individually and on behalf of the County of Tompkins, in answer to the Complaint herein: 1. Lacks knowledge or information sufficient to form a belief with respect to the allegations set forth in paragraphs 113," 1110," "11," 1112," 1116," "18," and "20." 2. Admits the allegations set forth in paragraph 112" of said Complaint. 3. Denies the allegations set forth in paragraphs "4," 115," 11 6 , If 11 7 , 11 11 9 , 11 11 1 7 ' tt 1' 14 , 11 I1 1 5 , II 1117 , 11 11 119 , 11 '1 21 , 11 '122 , 1t 11 23 , 11 "224," and 1125" of Said Complaint. 4. Denies the allegations set forth in paragraph 118" except for the last sentence of said paragraph, which the defendants hereby admit. AS AND FOR A COUNTERCLAIM ON BEHALF OF DEFENDANT TOMPKINS COUNTY AND AGAINST PLAINTIFFS 5. Upon information and belief, the plaintiffs are record owners of real property known as 571 South Danby Road in the Town of Danby, County of Tompkins, State of New York. Said property is more particularly described in a deed recorded in the office of the Tompkins County Clerk in Libre•_557 of Deeds at page 666 on May 27, 1977, a copy of which is attached hereto as Exhibit A. �. ... �.. . . . ._ _ .....Y.. . ^...'lr.�=aY .� ... ._ _ _ ....... _ -. 6. That the description of the property set forth in the aforesaid deed establishes that the plaintiffs' title abutts the easterly boundary of defendant's premises, hereinafter referred to as County Road 125. 7. That prior to February 29, 1984, the plaintiffs erected a stone wall parallel to the center line of said County Road 125 wholly within the bounds of said highway. 8. That the plaintiffs have been duly notified orally and in writing that said stone wall constitutes an obstruction and plaintiffs have failed to remove said. WHEREFORE, the defendants demand judgment dismissing the complaint herein and directing the plaintiffs to remove the aforedescribed stone wall pursuant to Section 103-a of the High- way Law of the State of New York, together with such other and further relief as to the Court may seem just and proper. Dated: January 15 , 1988 ULVEY IRNEY )SE Y. ROBERT C. MULVEY Tompkins County Attorney County Courthouse 320 North Tioga Street Ithaca, NY 14850 (607) 274-5546 -zz - VERIFICATION STATE OF NEW YORK ) ) ss: COUNTY OF TOMPKINS ) WILLIAM J. MOBBS, being duly sworn, deposes and says: I am one of the defendants in the above -entitled action; I have read the foregoing Verified Answer and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matter, I believe them to be true. William J�/' o s Commissioz'ier of Public Works Sworn to before me this L day of January, 1988. Notary,�Pub1 is :. MULVEY MORNEY ROUSE A NY Notary `u, ;•,; ` k Quarii:n� .�: .. -• Term b ,; .;, '13117j F /mar W P 67&-W ✓Ira, d-r1111� L[N '" /0 /�WM[ ♦L �[ /[o�or�r, M. V. C. I0004 yl i5 � a:adc May 27, 1977 $rfwrrn LOIS L. ATKINSON, of Slater4ille, New York, CD C.0 CD party of Vic first part, and HERBERT J. ENGMAN and RONDA C. E:7QM.AN, husband and wife, both of 522 West Ridge Road, Williamson, New York, as tenants by the entirety, party of the secatul part, n111ErlIS114 that 11w party of the first purl, in consideration of ---------------- -------------------ONE--------------------------- Dollars ($ 1.00...... � lawful money of the Unitrd Stwes. and other good and valuable consideration paid Ly Me party of Me sccond part, does hereby grant and rcic(zsc unto the part), of /he second part, Me hrirs or successors and assigns of thr party of the second part forever, all THAT TRACT OR PARCEL OF LAND situate in the Town of Danby, County of Tompkins and State of New York, bounded and described as follows: COM1MENCING at an iron pin set in the easterly side of the South Danby Road, which point is 2316+ feet southerly from the center line of Peters Road and marks the southwest corner of lands now or formerly of M. Daggart; running thence South 89' 12' 11" East 250 feet to an iron pin; thence South 24' East 276.5 feet to an iron pint thence North 89' 121 11" West 250 feet to a chiseled cross in a con- crete culvert; thence North 24' West 276.5 feet to the place of beginning, containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed from Earl J. Hallett and recorded in the Tompkins County Clerk's Office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town of Danby Tax Parcel No. 28-1-16.1 Grantee trailing Address: V �tJi ' 1 REAL ESTATE -�{ MAY 2 7 ld77 . ie�l!!'7t'SVt'.t.,�,L.. ��lSAy/yyyMwt` t;..e�' � •�-+�r�'�'.-•�i���•�a •..��• l� f t srtte� I i 1 •i 1 � • ao 0 vo do f "RAJA CA' ?�•00.60 E �.► . �= i L E kii 3 l0 oI �111'15 TCLE11 011 ILEY 1.44 ACR[S j s MO 0 Ix r a W W at ' M � „ CMtflll0 Cf0>I 1•coAU cut N(A= Alr WALL • lfl�'� n---•- -` i CRum ►OWN MAP Or PARTOF LANDS or OPAL S. RAJALA �� ►+rw'4,� by WEIL[A AS BCINO CONVEY[p TO a•,..•�;t tis ;....���,, +o•,, HORSCHEADS DAVID STASTNY �� rb:'• t % OCT. IP ' 1974 COUNTY or TpMPKINS i �.::; �r: SALE I'. So' TOWN OF DANDY . ' c .: r REFERENCE 0[ STATE Or NEW rOnK 's1: .,tft•a � ' L 109 P Aga ' ••.•.•••..•..•. -TO B.2SI8 .-....�.w+...... a.. .....�:4.4.1't ...x ,�, . , ''� rr't Y'a t�U�' "�:tF3:�y yi,.,a 1��F'y'Si f'b�t'.W+v�v`33-���ggee�, T•J�,�'�5� j • •i',1,•,'h�, �i'•� f i; 77•.. ..li..•......>.riS..rsiniJl!:J:1.i+.q/:MYi STATE OF NEW YORK SUPREME COURT .COUNTY -OF -TOMPKINS ... .. c — — — — — — — — -- �1 .. iI - a v - fa4�- - HERBERT�'ENGMAN Viand '�"`3 ENGMAN,` RONDA C • ` Plaintiffs, VERIFIED REPLY ` -TO Vs. COUNTERCLAIM TOMPKINS COUNTY and WILLIAM J. MOBBS, Index No. Comissioner-of Public Works, - RJI ' No. :_. Defendants. The plaintiffs, being duly sworn, for their Verified Reply to the defendants Counterclaim, depose and state as follows: 1. ADMITS the allegations set forth in paragraph numbered 115° of the defendants Counterclaim. - 2. DENIES the allegations set forth in paragraph s 11611, 11711, and 11811. WHEREFORE, the plaintiffs demand judgement against the defendants dismissing the defendants' Counterclaim and granting the plaintiffs costs and disbursements and such other and different relief as to the Court seems just and proper. ROBERT TTf4olAaintiffs T Attorney Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0314 _2(O-- VERIFICATION STATE ':OF NEW_YORK - ) .% '/� %%'�'� A.l 1 �nc�_ COUNTY DF 'a`l..O.>1 �+i� s'S ~� a�€ T a r .7 "1r �<rYtf . a.- t. 7 - r '" , l• ••i R:• ,} :7'•' , r k c Y �'S I-_ :HERBERT .J ;ENGMAN, being duly `sworn, deposes and says � #, } am one of the plaintiffs in }the above entitled action',,I 41 have read the foregoing Verified Reply and know the contents thereof; the same is'true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. H TERT T. GMAN Sworn to before me this _574 day of February, 1988. A-&j I. �"*_ NOTARY PUBL STATE -OF NEW YORK ) COUNTY OF C0trLA.tD_ ) ss. : R06En"T T. Jc: A ETT NOTIORY FUEL11C COMM. EXP. 3-30- OUALfF1EB IN COr%TLAND COUNTY NY REG. N0.46 i 4753 RONDA C. ENGMAN, being duly sworn, deposes and says: I am one of the -plaintiffs in the above -entitled action; I have read the foregoing Verified Reply and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. RONDA C. ENGMAN Sworn to before me this 57?j day of February, 1988. NOTARY PUALIC r ROCERT T. J=' ETT NOTAr,r PUELi"v COMM. EXP. 3-30- QUAUFIE, IN canna COUNTY NY REG. NO.4874753 -z1- . 1al.rwal P 67&-WurrV 4.d, 1i." ai.a i.J, r ark. 1Nwj P � I 045 ' � $r2tnrsn fuhrnfurr made May 27, j JW..Ya 81--. 14 .. LA- Qu rYaUawa�a *O [sc. t PL Al uo.ora. p. V. C. 1po04 LOIS L. ATKINSON, of Slaterville, New York, 1977 party of the first part, and HERBERT J. ENGMAN and RONDA C. ENG14AN, husband and wife, both of 522 West Ridge Road, Williamson, New York, as tenants by the entirety, party of the sccorul part, U1ltilti44 that the parry of the firs! purl, in consideration o/ -------------- - - -------------------ONE--------------------------- Dollars (j1.00------) lawful money of the United States. and other good and valuable consideration paid by the party of the secotul part, does hereby grant and release unto the party of the Second part, the 1wirs or successors and assigns of the party of the second part forever, all THAT TRACT OR PARCEL OF LAND situate in the Town of Danby, County of Tompkins and State of New York, bounded and described as follows: COMMENCING at an iron pin set in the easterly side of the South Danby Road, which point is 2316+ feet southerly from the center line of Peters Road and marks the southwest corner of lands now or formerly of M. Daggart; runninq thence South 89. 12' 11" East 250 feet to an iron pin; thence South 24° East 276.5 feet to an iron pint thence North 890 121 11" West 250 feet to a chiseled cross in a con- crete culvert; thence North 241 West 276.5 feet to the place of beginning, containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed from Earl J. Hallett and recorded in the Tompkins County Clerk's Office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town of Danby Tax Parcel No, 28-1-16.1 Grantee Mailing Address: 2 REAL ESTATE MAY 2 7 M17 TRAN3F"R Tr.X TOtiG.:::S COu, 7i Y N ' I I I 1 t r ••�.Rl�•�� .t.. �:y��i^..;Lt. .;T t.. !sir �'�j�. - ..y{F r� -.�. Ii �' . TT :' aL' T ►; .: e:.� �.r..�. . ash T F RAJALA SET 1= I L Iy D 276.?0• ter- 3 i� 0�1 GII'T5 rrfllS cnarlTY CLEIII,•S 011 ILE • t W e0 1.44 ACRES t, P ter MAP Or PART OF LANDS OF OPAL S. RAJALA BEING CONVEYED TO DAVID STASTNY COUNTY Or TOMPKINS TOWN OF DANDY STATE OF NEW yanX �N I24 • 00 • 00 W i CRUMTOWN RO.+ �- JOD''2SI8 �CONcAto:t CULV AT WA By WEILEIt ASSOCIATES HOASEHEADS N.Y. OCT Ip . 1174 SCALE la, ?O' REFERENCE DEED L 205 r 4S p M 1 2 3 4 5 6' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 22 RONDA C. ENGMAN, called herein as a witness, having been first duly affirmed, testified as follows: EXAMINATION BY MR. MULVEY: Q. I have a few questions for you. A. Sure. I'd like to go over a few things that you hit upon. Q. It's basically going to work this way, and your attorney can give you advice on how to handle it. I'm just going to ask questions, and I just ask that you answer them as best you can. A. You don't want me to cover the Health Department? Q. Well, if I forget something, we will try to cover what I have forgotten. Mrs. Engman, do you recall approximately when as far as a month and year that the construction of the wall was started? A. It was started probably in 1978. Q. Do you have any recollection as to when during that year? A. Probably June. Q. Do you recall consulting with any officials from the town or the county prior to the construction of the wall? A. No. I remember I did not. Q. Well, what's your best recollection as.to how long 30 M n e N dm O m 0 U O LL i W a a W w r It Q W W n. W W n 0 LL 1 R. Engman by Mulvey 23 2 it took to complete the wall? 3 A. The wall was done in three sections. The first 4 section was directly in front of the house, and that's about 5 100 feet long, and that took -- I think it probably took two 6 seasons, so probably it took two years. Just a guess. Then 7 the other section,which is 150 feet long, was done in two 8 sections, and that probably took another total of two seasons. 9 So maybe it took either three or four years to complete the to whole thing. 11 Q. Well, do you have an estimate as to the completion 12 date as far as a month and year? 13 A. Well, it might have been 1981, maybe. We only worke 14 in the summer and fall, so it would have to have been sometime 15 then. 16 Q. At any time during that period do you recall having 17 any contact with officials of Tompkins County or the town 18 regarding the placement of that wall? 19 A. I talked to Ward Hungerford once after the first 20 section was completed. 21 Q. Where did that conversation take place? 22 A. Out in the driveway. 23 Q. What did you say to him and what did he say to you? 24 A. Well, I told him something like that we had -- we 25 were intending to put in this second long strip, and that we —.91 — in M 0 0 N 1yO O m 0 u v LL i A X W a a N W W } 0 a w rc •J W N i R 0 LL 1 R. Engman by Mulvey 24 2 wanted to know if there were basically any problems. And he 3 got out there and measured it, and he said something like, 4 well, this section is going to be in our right-of-way. 5 Q. Do you recall why he was there to begin with? 6 A. Well, because I called. 7 Q. What prompted the call? 8 A. I think Herb and I had said, well, we are going to 9 put in this long section and maybe we should see if the high- 10 way department has -- I don't remember our exact words, but 11 something like maybe, do they have any comments. 12 Q. Why were you interested in their comments at that 13 point? 14 A. I think we were trying to be nice. 15 Q So Mr. Hungerford arrived at your premises and you 16 had this conversation? 17 A. Mm-hmm. 18 Q. So at that point he told you that the wall that had 19 been completed up to that point was in their right-of-way? 20 A. No. No, the new section, part of the new section 21 would be in their right-of-way,he said. And I said, what is 22 your right-of-way? I mean, not that I believed that they had 23 one. But I said, what is your right-of-way? And he starts 24 measuring, and he came up about 15 feet of the driveway. He 25 said, well, this is our right-of-way. 3z In 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R. Engman by Mulvey 25 Q. What did you say to him? A. I didn't say anything.. Q. Did you have any further conversation at that point? A. No. Q. Well, on any other occasion did you have any communications with representatives of the county regarding the replacement and the location of the wall? A. No, not that I can recall. Q. How soon after that conversation with Mr. Hungerford did your husband resume construction of the other section to the wall? A. I think shortly thereafter. It wasn't long. Q. Was there another occasion since then that you had any communication with county officials regarding the location of the wall? A. Other than last year, no -- yes, we got a letter from Bill Mobbs several years ago saying that the wall was in their right-of-way and that it had to come down. Q. I'm going to show you what's been marked as Exhibit 2. Could you take a moment to review that and tell us if you recognize it? A. I'm not sure if I remember this one or not. I think I have one in the file that's different than this --give me a minute --shorter and a little more terse. 2R 0 0) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R. Engman by Mulvey 26 ¢ Why don't you take a minute to see if you have it. A. Okay, we do have that one. Q. Could you compare that with Exhibit 2 to tell me if it's the same one? A. Mm-hmm, it looks like it. Q. Well, after you received that letter, what, if any- thing, did you do as far as responding? A. Okay, this is a letter that I wrote in July of that � year. Q. I have that as Exhibit 3. It's got markings on it, but why don't you look at Exhibit 3 and tell me if it's the same thing. A. Looks like it. Q. Thank you. You can hang onto that. I'd like to show you Exhibit 4. Could you look at that -- which appears to be a carbon copy -- look at that and tell us if you recognize it. A. Yes, I do. Q. After receiving that did you take any action? A. I don't think I did. I don't remember taking any action. Q. Do you know if you have had any further written communication with a Tompkins County official after receiving Exhibit 4? M 0 m N n m U U C1 LL tl W W a •a W W 0 a W J W N i K 0 1 2 3 4 5 61' 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 R. Engman by Mulvey 27 A. I've had a number of communications. I mean, the number of communications I've had probably would fill volumes. There were times when they came and cut down some of our trees, and I wrote Bill Mobbs letters and said -- or Ward Hungerford and said, you've cut down my trees. I'd like to be compensated. I had a number of communications verbally and on the phone. Q. What I would like to know: Did you have any further communications with county officials verbally, face-to-face or on the phone regarding the wall? A. Since the letter from Mr. Williamson on August 20th, 1984, I don't think so. Not that I remember. Q. I'll go back to the topic of the Health Department. At the time you took possession of the property,did you receive any information from any source about the necessity for the location of the well? A. Yes, it is my recollection that we got a written form from the Health Department that stated that there were certain footages or distances that the well had to be from the septic tank, and that in the case of having a natural water supply, like the creek near the septic tank, it had to be a certain distance from that septic system, and that a certain type of sand had to be used in the leaching field for the septic system because of the creek. And I don't have a copy - 310�- - r- HIGHWAY DEPARTMENT Tompkins County Bostwick Rd., Ithaca, N.Y. 14850 Phone: Area Code (607) 273-4262 DATE: April 27, 1984 + TO: Ronda Engman 571 South Danby Road Spencer, New York 14883 FROM: William J. Mobbs Commissioner of Public Works SUBJECT: Roadside Obstructions Your letter of February 29, 1984 reminded me that I should have written to you long ago regarding the stone wall that you have constructed in the highway right-of-way. This was done after we verbally indicated to you three or four years ago that any such work should be done outside of the three rod highway right-of-way. Any non -highway construction within the highway right-of-way must first be authorized by permit issued from the Tompkins County Highway Department. Therefore, the placement of the stone wall is illegal and subjects you to fines for the violation. As progressive improvements are made to the South Danby Road, I anticipate that you will be required to remove any p¢tions or all of the wall within the right-of-way. I bring this to your attention now so that no further construction is performed and so you may, over the next year or two, anticipate the need to relo- cate the wall. In expectation of your understanding and cooperation in resolving this problem, I see no need to press the illegality of your action at this time. Sincerely, William J. Mobbs` cc - R. Williamson - county attorney 97oncfa Cn-yman J71 c5oul.4 DanSy Aoaco( cspence.r, Mew (607) Jd9-4031 -July eb, 1984 Ward Hungerford ..;-Tompkins 'County Hig] Bostwick Road Ithaca ;Dear Mr. Rungerford: a,�.K . 'ved at our current address for more than My- husband and I have 11 -seven years. For much of that time, we have been in conflict with the _Tompkins County Highway Department over one matter or another, �tR but in general, all problems seem to revert, the Highway Depart-_ S men is contention thatff-has a t7iree rod right-of-way on outh Fr�o a I have taken the time to go to the Law School 'library to read and study tTe New --------Fo--r-]<--YLate --El-ghw-ay laws as they pertain To -this situation. I have also consulted with the firm that originally surveyed our property. the length of a short n CD .1 order to keep this letter from becoming -n 2 Cl% Many :novel allow me to state only the following structures on South 'Danby Road have existed and still exist within the three rod limit. Some of these structures are probably more than fifty years old. At no time in the past has a width of three rods been on this road. p view of this, Article 8 §189 Note - 19 applies. It says in part: les s s L�an three -rods ot a road have been conti;iuously the town for 'more than ten ears, the extent of the user used b y y . .'is '-limited to the travelled portion of the road and land necessary zfnd incidental thereto for highway purposes and the town super- n z tendent may not open the road to a width of three rods without '=.the consent of the abutting owners or without compensating such '0'n>e v�'rs by due process of law." Note 18 mentions in its last para "A highway may become a public highway. through public graph, use irrespective of width; the width of such a highway is defined by the extent of the use. 7. Let. it be made very clear at this time that the Engmans will not it the Highway Department to 111111111111,ha5e our propertV and that n gflw rE_1 _n ke u E take control of this land onlyafter rhip procea�i erml R___ -the tAzf 2-r, 'con tj . nued I U ngerfoiV123W. - 1,*' much ,a case, I 'would like to point out that Notes 27 and 28 state t . . . . . . e e.,,Tzir r h tat that ot of estaT-.--. ;2 JShin -1 - user rests wit the Mghwa3; I'll(Tart-ment. ;fir- r.-'.With':-this in mind, I would like to state that your employee, 'Wi7'T!ngstone, did, on July 18, 1984, 'trespass on my property destroy a number of plants and one bush owned, by me. j -Mr.' Livingstone stated to me that you had authorized him to The bush that was cut down was six years old and about five Teet to the other plants to be $5 for a - high. I estimate it's value at $15. 1 estimate the amage . -InLal—of _S20. believe' this to be fair compensation for damages done and would appreciate e your that amount by Y t Department reimbuErL*Eff me ugusf -31, 1984. 'You'- have been warned in the past that trespassing on our property .'by,Nigh way Department employees will not be tolerated. is _.dour _TIiL final warning. It would be unfortunate if we should ever hive -to n to court But, of course that decision is up to you. Sincerely, . 7 9 me -Ak - ;�._41xHIBIT .c - � fir{ •♦ `*T��: August 20, 1984 Mrs. Ronda Engman 571 South Danby Road Spencer NY 14883 Dear Mrs. En man : Mr. William Mobbs, Commissioner of the Tompkins County Highway Department, has referred your letter of July 26 to m!' office for reply. The useable portion of the highway includes not only the paved portion, but also that portion used for drainage. The ditches and paved portions are within the three -rod right-of-way, and the highway workers were only mowing that area within the three rod right- of-way. The worker involved stated he only trovied up to a rock wall, which is in the right-of-way. cc: Bill Mobbs Very truly yours, Robert I. Williamson County Attorney _3q STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS HERBERT J. ENGMAN and RONDA E . ENGMV4., Plaintiffs, vs. COUNTY OF TOMPKINS and WILLIAM J . VIODDS, Commissioner of Pablic Works, ---------------------------------------- STATE OF NEW A ORIC ) COUNTY OF TOMP9111*411S) _S: ANSMING AFFIDAVIT Index No. 88-511 RJI No. 88-0356 Igor.. Robert S. Rose Herbert J- mngman ano Pcr. a C. En-gria,s, the plaintiffs herein, bainkj7 du1? 1 � r�-.a.. � t �_! a1 .�3 _3'= C ':'3�'aj' I n anoiya� aZ :? C_='QS: tl:�i tO L. i theG'� �'' �, a=1i5 T..l:i _=u_'_ ;,J t?t;:::2? �� �.;',' CO:t-? �Z3.'_t i'•._ v tl?O oun� t , t the lain'"iff_. ' r-- �!se Q_ action a:1,2 for EUL'ii' al-y judgment in fa-voi of t_?L� : C' r n r7- ?'ys+ c_'.� T'.— c _c1iT1 �+3 f?C' :113: the plain+iz=fa' stc�c "v:ail e:.cicac'�'s upon the right-of-:ra:r claimed by the dof endant., along County Rot:: c 125 (Sou'•.:'•.-t Danb J Rnz-1.d) . Accord- T in ly c�I?JYift."��: Q�i;i r re -e_, orderin- tha P1aint3F=^a t , rE?t?IO`: __ ti_.�i r StQ^? Joca4- 4 0n • L:t? "^�`a C:.iy ar' rtOt ...1� a * ... .:::1:1 .._ 'tt-'e,� -tn L 4e1 their count-crclain for th= reasor, ..-_,4�, ' o : COi1CCr'li^g i'.'`ICf'i:or C_ not i,PE? -. ' E?"tC'ilt t' , -1 t;O 12C?i 1?i2 =:"i C` t:?O p a nt i " f�.' labov2 described Vall lies vitbl.n t?ze r;'�i,L_of-gray claimed by the defendants. The reasons Sab.y the defaZdant_ 'ar_ not enti tic�d to sum:.lary juc?anent upcn their counterclaim are set for-Ch Inorn nart3cularly in para.graplts 3. That only a portion of the plaintiffs approximately 250 foot long stone wall Lies within the right -of -tray claimed by the de- fendants. The defendants' have offered no proof in support of their motion for summary judgment concerning ghat portion or part of the plaintiffsf stone gall lies within the right-of-way claimed by the defendants. The defendants submit in support of their motion for surmary judgment only bare allegations that t .n entire gall is within t?:e right -of -;ray which they claim. ALn issue of fact is presented con -- corning what portion of the ball lies with the right -of -Fray claimed by the defendants. This issue of fact can only be resolved by trial. 4. That t'Ic defendants claim that they have a right-of-way over County Route 1.25 of 3 rods (16.5 yards or 49.5 feet) pursuant- to th-- previsions of section 139 of tile- highway Law. 5. That the width of a hic:hvay by virtue of public user is Co - terminated by the extent of the use and vrhere less than 3 rods have been continuously used and maintained by the highway department over the statutory period set forth in paragraph 189 of the HigIlway Law and the width is limited to the traveled portion of the road and land necessary and incidental thereUo for highway purposes. The burc?an cf Proof rests with the County to establish tho extent of use. 6. Thai''., the e.ktent of use of the right -of -.May along County Road 3.25 by the defendants in the ten years before t%Ie prose -Tit widening was Bono in front o" the plaintiffs' hone was not more than It l row to wits the width of ono land of traffic in each direction. The de=endancs had not during ti'_at period maintained a shoulder to the road in from, o= the plaint IffsI home, let alone uses or maintained an underground drainage system of the sort installed by the defendants at that location in Ju_rne, 1987. An issue of fact concerning the width and extent of the defendants use of the right-of--vay is raised which 4 ' 14 can only be resolver: by trial. If the defendants' right-of-way fails to e:ctend to the land upon which plaintiffs' stone wall lies, the de- fendants lace: standing to complain by counterclaim of the Danner of use of such land by the plaintiff. 7. The defendants seek, amongst other relief, a dismissal of t'ie plaintiffs' on the ground that ;:hc plaintiffs' cause of action has no merit. Specifically, the defendants claim that the plaintiffs lac': standing to complain. >'he plaintiffs cause of action does have merit and the plaintiff: do have standing and thus the defendants are no -IL; entitled to an order of dismissal for the reasons set forth bolo-u. E. That tie County has never acquired a right-of-vay beyond one rod for the reasons above-racited. Therefore, th.e defendants have no right to expand their right-ol-*nay excep o by con- demnation or purchase - neither of ithich have been done in the in- stant case. Furthermore, the plaintiffs have continuously during their tenure used the area in front of their home adversely to the edge of the old pavement as their lawn by moving and at-hervise ant' their predecessor in interest had also used said area adversely all for a period in e::cescivc of 10 years .4--rom the conduct of the de- fendants complained by the plaintiffs. TTie plaintiffs did thereby obtain by the lasts of adverse possession title to or interest in such land zuffici3nt to them s-Landirg to ccraplain against the defan- darts in the manner set forth in plaintiffs' complaint. - 4 z - 9. That, in addition, the drainage pipe described in para- graph 8 of the plaintiffs' complaint extends on the south crest portion of plaintiffs* lands well beyond the 3 rod right -of -Tay being "claimed by the defendants. MI REFORE, the undersjgne6 alaintif'ts respectfully ask the Court to deny the defense motion in all ragarC3 an6 to grant the plaintiffs such other aru a6ditic al roliof as to tti•a Court, may seen just and proper. Signed and swc i:n to tie this q7pday of July, 1988, NOTARY PUBLIC F lz2E':Z7" J . El1Gr'_ 01 P1ai.iziz 4-3 STATE OF NEW YORK SUPREME COURT APPELLATE DIVISION THIRD DEPARTMENT ----------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -Respondents -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works, Defendants -Appellants. CERTIFICATION PURSUANT TO CPLR §2105 I, Robert C. Mulvey, attorney for the defendants -appellants in this action, do hereby certify, pursuant to CPLR §2105, that the foregoing printed record/papers on appeal has been personally compared by me with the originals on file in the office of the Clerk of the County of Tompkins and found to be true and complete copies of said originals and the whole thereof of the notice of appeal, the judgment roll, the transcript of proceedings, the order appealed from and all the papers which were used in the court below and which are specified in the order appealed from and the whole thereof, now on file in the office of the Tompkins County Clerk. I further certify that the records/papers on appeal in this matter were served on the attorney for the plaintiffs -respondents for stipulation waiving certification, and more than ten days having elapsed with no response thereto. Dated: February � % , 1989 Robert C. Mulvey Tompkins County Attorney Attorney for Defendants - Appellants ROBERT C.MULVEY COUNTY ATTORNEY - 4 4 - COURT HOUSE ITHACA. N.Y 11 0 `1 f ROBERT C MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA N Y STATE OF NEW YORK : SUPREME COURT APPELLATE DIVISION : THIRD DEPARTMENT ---------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -Respondents -vs- COUNTY OF TOMPKINS and WILLIAM J. BBS, C:.m.u-Hissioner of Public o.rks, Defendants -Appellants. CERTIFICATION PURSUANT TO CPLR §2105 E k I, Robert C. Mulvey, attorney for the defendants -appellants in this action, do hereby certify, pursuant to CPLR §2105, that the foregoing printed record/papers on appeal has been personally compared by me with the originals on file in the office of the Clerk of the County of Tompkins and found to be true and complete copies of said originals and the whole thereof of the notice of appeal, the judgment roll, the transcript of proceedings, the order appealed from and all the papers which were used in the court below and which are specified in the order appealed from and the whole thereof, now on file in the office of the Tompkins County Clerk. I further certify that the records/papers on appeal in this matter were served on the attorney for the plaintiffs -respondents for stipulation waiving certification, and more than ten days having elapsed with no response thereto. , Dated: February / / , 1989 Robert C. Mulvey Tompkins County Attorney 16/ Attorney for Defendants - Appellants t e qo N Sir. Take notice of an S ! ®f which the within is a copy, dadk, ca f in the W idlin en+ "pled action, on the day 0i . 19� , and duly entered in the office 0i the Clary of the County of on the day of —_ 19 Dated - N. Y., 1 OBERT 1. WILLIAIMSON Attorney for County of Tompkins office and Past Office Address County Court House 320 North Tioga Street ITH CA, NEW FORK 14850 11 Nc% 58f2Q1 _ BAR is STATE OF N. TW YOR ERBERT J . NGNI WI and RONDO C. 'ENGYAN , Respondents _Vs— TOMPKINS COUNTY and i Appellants 0 R D E MULVEY RO ERT VOMMMUM Attorney for the County of Tompkins Office and Fast Ogee Address County Court House 320 North Tioga Street rrHACA,'\ W YE)RK 14850 Due anal tonal service of e within ad day of 19 ttaey for 0 ' 5, 0 i q r f :a ;5 I Q C 00 ZER , �s m Q 61d u 11,rnrk, coum,y OF (PERSONAL VEFIFIC-A SSA being duly sworn deposes and sayl that --he is in d-iis action; that --he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this —day of.__— — 19 otate of Xkw D, ork, (CORPORATION VERIFICATION) being duty sworn, deposes and says tlxit --he is the the corporation named in the within entitled action; tb.at-. ----he has read the foregoing knows the contents thereof. and that the same is true to fi—own knowledge, except as to the matters therein stated to be allcged upon information and belief, and as to those matters— be believes it to be true< Deponent further says that the reason tbi-, verification is made by deponent and not by is because the said- --- is a corporation and the grounds of deponents, belief as to all matters in the said not stated upon h ---own knowledge, are investigations ons which deponent has caused to be made concerning the subject matter of this and information acquired by deponeat ha -4ke course of h.—dutiesas an officer of said ----.---- corporation and from the books and papers of said corporation. Sworn to before me, this —day of 191 0-tatr -of Krai thirk, (ArFIDAVIT OF PERSONAL SERVICE) SJ being duly sworn, dcp�oses and says; I am over 18 years of ag--, not a party to d-iis action and reside in the State of New Yatk, That on thl of NI -New Y therein named by delivering to, and leaving personally with said depondent describes person served as aforesaid to the best of depondents ability at the tfine and circunuLiaces of sc'r'vice-as f.M67w's. sex: _. colon hair-.—app. age: —app. hv—,appt wt. other identifying features;------ PRESENT: At a Term of the Appellate Division of the Supreme Court of the State of New York, held in and for the Third Judicial Department, at the Justice Building in the City of Albany, New York, commencing on the 5th day of September, 1989. Hon. A. Franklin Mahoney, Presiding Justice Hon. T. Paul Kane Hon. John T. Casey Hon. Leonard A. Weiss Hon. Norman L. Harvey, Associate Justices. -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Respondents COUNTY CLERK'S INDEX NO. 88-511 -CaS� -vs- TOMPKINS COUNTY and WILLIAM J. MOBBS, Commissioner of Public Works, Appellants. -------------------------------------- The defendants Tompkins County and Niliiam J. Mobbs having appealed from n order of the Supreme Court of Tompkins County, entered on the 13th day of December, 1988, in the office of the clerk of the County of Tompkins, and said appeal having been presented during the above -stated term of this Court, and having been argued by Robert C. Mulvey, Esq., of counsel for appellant, and by Robert T. Jewett, Esq., of counsel for respondents, and, after due deliberation, the Court having rendered a decision on the 16th day of November, 1989, it is hereby ORDERED that the order so appealed from be and hereby is modified, on the law and the facts, without costs, by permitting ROBERT C MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA NY further pleadings and discovery under such conditions as the Supreme Court may, in its discretion, impose, and, as so modi- fied, affirmed. ENTER: DATED and ENTERED: December 6, 1 A TRUE CUM C ROBERT C MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA NY h r fXC 1S10R ROBERT S. ROSE JUSTICE Robert T. Jewett, Esq. 55 Main Street Cortland, New York 13045 STATE OF NEW YORK SUPREME COURT CHAMBERS COURT HOUSE BINGHAMTON, NEW YORK 13901 Robert C. Mulvey, Esq. Tompkins County Attorney Tompkins County Court House Ithaca, New York 14851-0070. February 5, 1990 RECEFVLJ TOMPKINs COUNTY E OURT CLFRI'1) OFFICE 90 FEB - B At i � j (607) 772-2473 Re: Herbert J. Engman and Ronda C. Engman v Tompkins County and William J. Mobbs. Index No. 88-511. RJI No. 88-0356-A A/ Dear Counsellors: This letter is to confirm that trial of the above -entitled action is scheduled to begin on Monday, February 26, 1990, at 9:30 A. M. at the Tompkins County Court House in Ithaca, New York. Pursuant to section 202.35 of the Uniform Rules for the New York State Trial Courts, you are asked to furnish to the court the following material at least three business days before trial: 1. From the party filing the note of issue: copies of all pleadings marked as required by CPLR 4012; 2. From the party(ies) supplying bill(s) of particulars: copies of the demand and the bill of particulars; 3. From all parties: a memorandum outlining the facts that you believe will be established at trial, as well as any specific issues of concern that you will call upon the court to determine. Please include statutory or case -law authority in support of your position. Please notify the court as soon as possible in the event that this action is resolved prior to the scheduled trial date. Very truly yours, SUPREME ,. i Z b- Y6 y RECEIVEQ TOMPAMN COUNTY CIERK fS 6 3 43 Ph #.% RJI# CIVIL TRIAL DISPOSITION SY 03 S6 Name of Case: C. - Date Jury Drawn Trial Commenced a /a/9a Disposition Code: CONS Consolidated DISC Discontinued DISH Dismissed SBT Settled Before Trial SDT Settled During Trial Verdict (J or NJ) Verdict/Decision: ft Date Jury Non -Jury Index No. ,ems-yl� Court PRESS'"''� • HON. Cler Repc Attcrney for Plaintiff: 61 Attorney for Defendant Trial date: Trial Ended: STKN Striken TARS Transferred to Arbitratior WITH withdrawn DECI Decided VERD Verdict JUDG Judgment OFFICE OF SUPREME AND COUNTY COURT CLERKS STATE OF NEW YORK COUNTY OF TOMPKINS 320 NORTH TIOGA STREET ITHACA. NEW YORK 14850 (607) 272-0466 NANCY M JOCH CHIEF CLERK COMBINED COURTS Robert C. Mulvey, Esq. 319 North Aurora Street Ithaca, New York 14850 May 22, 1990 Re: �Engman vs. County of Tompkins and William J. Mobbs 1 Index No. 88-511 RJI No. 88-0356 Dear Mr. Mulvey: Enclosed herewith are the defendant's exhibits from the above trial. Very truly yours, Barbara G. Auble Court Clerk �s /ba encli 1 L SUPREME COURT COUNTY COURT OFFICE OF SUPREME AND COUNTY COURT CLERKS STATE OF NEW YORK COUNTY OF TOMPKINS 320 NORTH TIOGA STREET ITHACA. NEW YORK 14850 (607) 272.0466 NANCY M JOCH CHIEF CLERK COMBINED COURTS May 22, 1990 Robert T. Jewett, Esq. 55 Main Street Ithaca, New York 14850 Re: Engman vs. County of Tompkins and William J. Mobbs Index No. 88-511 RJI No. 88-0356 Dear Mr. Jewett: SUPREME COURT COUNTY COURT Enclosed herewith are the plaintiff's exhibits from the above trial. Very truly yours, Barbara G. Auble c Court Clerk : m �c /ba encls. a., u C I pry— $µmmong withouL Notj c e, Blank Court. 943 �`oPYRIGHT 1277 aT JULPU5 BLUMBERG, mC-. LAW BLAk BLIS' ER5 Persunul SLMCe. SUPREME Cvu: % } ii,C. i�.k�+:? - J • Y.itt s�'ae�ti �.'i1'_-. Plaintiff against L7 t�k i u. a.i,:.'..�P�.t J . f''sDI��S: �o�i �i^r zr •- e' :.►w Yi�4r y1L 11ty ii Yor', Defendant Index No. Plaintiff :designates 46 s7'ia'I:r3 County as the place of trial The basis of the venue is rQnietac-, of frillnlrii ll-4 Plaintiffs resides at County of To the above named Defendant Van ary henry -qunmunrh to answer the complaint in this action and to serve a copy Of your answer, or, if the complaint is not served with this summons, to serve a notice of appearance, on The Plaintiff's Attorney(s) withic ti• u days after the service of this summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or answer, judgment will be taken against you by default for the relief demanded in the complaint. Dated,'�'C JTtif.: y - -� is -` s•:. 1 Defendant's address.: Attorney('s) for Plaintiff Fx r -L :r�i:� DdSce .and -Post OHice Address .L 'a'tvwr'. �y t f A"J�r I.J -031fa IVI SUPREME COURT STATE OF NEW YORK TOMPKINS COUNTY ------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VERIFIED COMPLAINT - against - TOMPKINS COUNTY and Index No. WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, New York, RJI No. Defendant. ------------------------------------- The plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, for their Verified Complaint set forth as follows: FIRST CAUSE OF ACTION FIRST: That at all times hereinafter mentioned the plaintiffs, HERBERT J. ENGMAN and RONDA C. ENGMAN, were citizens of the United States of America and resident electors and taxpayers of the County of Tompkins, Town of Danby and State of New York and that they reside at 571 South Danby Road, Town of Danby, County of Tompkins, New York. SECOND: That at all times hereinafter mentioned the defendant, WILLIAM J. MOBBS, was and is the Commissioner of Public Works of the County of Tompkins and that the Tompkins County Department of Public Works and the Tompkins County Highway Department are subject to and under his command, control, direction and supervision. THIRD: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by grant of a cer- tain parcel of land known as 571 South Danby Road located in the Town of Danby, County of Tompkins and State of New York, the deed to which parcel is recorded in Book 557 of Deeds at page 666 in the Tompkins County Clerk's Office and a true copy of which deed is attached hereto as Exhibit "A". The frontage facing South Danby Road of the aforementioned parcel is 276.50 feet. South Danby Road is at all points a Tompkins County highway known as Tompkins County Highway number 125. FOURTH: That the plaintiffs are and at all times hereinafter mentioned were owners as tenants by the entirety by adverse possession or otherwise of a certain parcel of land also located at 571 South Danby Road in the Town of Danby, County of Tompkins and State of New York located and described as follows: beginning at an iron pin 2316 ± feet southerly from the centerline of Peters Road (being the southwest corner of lands now or formerly of M. Daggart); thence running S 240 00 E a distance of 276.50 feet to a chiseled cross in a concrete culvert; thence running southwesterly to the edge of the pavement of South Danby Road as it was constituted on May 1, 1987 prior to the commencement of the current widening project; thence running northwesterly along the aforedescribed edge of the pavement of South Danby Road a distance of 276.50 feet to a point; thence running northeasterly to the iron pin at the point and place of beginning. FIFTH: That prior to May 1, 1987 the aforedescribed edge of the pavement of South Danby Road in front of the plaintiffs afore - described property was located eight feet from the centerline of said South Danby Road, which edge is hereinafter referred to as the "old edge of the pavement". Prior to May 1, 1987 the County of Tompkins had never widened South Danby Road beyond the old edge of the road in front of the plaintiffs' aforementioned property nor ever main- tained a shoulder thereto. SIXTH: That the land described in paragraph four above had never before May 1, 1987 been used by the County of Tompkins .for highway or other purposes. SEVENTH: That the land described in paragraph four above has been used as a lawn by the plaintiffs herein and their predecessors in interest continually and exclusively for the length of time and in the manner prescribed by law so as to acquire title by adverse possession. EIGHTH: That since May 1, 1.987 the Tompkins County Highway Department has widened the aforedescribed South Danby Road pavement of the east side of the road from 8 feet to 10 feet, 16 inches in some place to it feet, 2 inches in others and have added drainage pipe and a shoulder that extend up to an additional 7 feet onto the plain- tiffs' lawn. As a result of the aforementioned widening project the County has wrongfully and unlawfully taken land of the plaintiffs ranging from 4 to 7 feet in depth along the entire 276.50 feet of plaintiffs' road frontage. The taking was totally without the plain- tiffs permission and against their expressed desires. Neither Tompkins County nor any other governmental agency has compensated the plaintiffs in any manner. NINTH: That the plaintiffs have searched all applicable records in the Tompkins County Clerk's Office and states that there is no re- cord of the County of Tompkins or any other govermental unit having ever obtained title to the land underlying the road by purchase or grant or by any other means recognized by section 118 of the Highway Law of the State of New York. TENTH: That there is located on the aforedescribed lands of the plaintiffs about 15 feet from the old edge of the pavement a well which is the sole source of water to the home of the plaintiffs. ELEVENTH: That the aforementioned well is located at the only site on the parcel permitted therefore by the Tompkins County Depart- ment of Health and by the applicable laws of the State of New York and of Tompkins County as is more particularly explained below. TWELFTH: That a creek runs behind the plaintiffs home and roughly parallel to the road. The applicable laws of the State of New York and of Tompkins County prohibit installation of septic systems within 100 feet of a creek. The law also prohibits the in- stallation of wells within 100 feet of a septic system. Given the configuration of the plaintiffs' parcel, when the aforerecited laws governing the location of wells and septic systems are applied, the only legal (and environmentally safe) site to locate the well is at a point approximately 15 feet from the old edge of the payment c:n South Danby Road. THIRTEENETH: That there is also located on the lands of the plaintiffs a certain stone wall which was built by the plaintiffs and which runs in a generally north -south direction the entire road frontage of the plaintiffs parcel at a distance of approximately 5 feet from the old edge of the road. FOURTEENTH: That the defendant has by widening the road as aforedescribed caused irreparable damage and will cause further irreparable damage to the property of the plaintiffs in that snow plowing has and will continue to deposit road salts and automobile fuel contaminates on top of the well of the plaintiffs. If the plaintiffs' well is contaminated in this manner, their home will be rendered uninhabitable in that there is no other legal or safe place to locate their well. FIFTEENTH: That the defendant has by widening the road as aforedescribed to a distance of 5 feet from the old edge of the pavement has caused substantial damage and will continue to cause damage to the aforedescribed stonewall by striking it with con- struction equipment and by the erosive effects of plowed snow and ice which would be heaped upon the wall. SIXTEENTH: That the availability of fresh and pure water would render their parcel inhabitable. The aforemetioned stone wall serves to buffer the plaintiffs' home from the intrusion of the public and is a thing of beauty which contributes greatly to the plaintiffs' enjoyment of their home. SEVENTEENTH: That all the land to the east of the old east edge of the pavement of the road along the entire length of the plaintiffs' road frontage aforedescribed belongs to the plain- tiffs. EIGHTEENTH: That neither the County of Tompkins nor any other govermental agency has ever undertaken proceedings to acquire the land underlying the road by condemnation although the section 120 of the Highway Law gives the County the power and authority to acquire land for roads and drains and ditches associated therewith by condemnation where attempts at purchase from private owners fail. NINETEENTH: That any right the County of Tompkins has obtained to the use of the land underlying the road was obtained solely by usage or easement. TWENTIETH: That any right the County of Tompkins may have ob- tained for passage over the road is limited in width to the width to which the road has been used for road purposes prior to May 1, 1987. TWENTY-FIRST: That the road prior to May 1, 1987 was sixteen (16) feet in width, that is to say eight (8) feet from the center of the road to the east edge of the road and eight (8) feet from the center to west edge of the road and that the road has never been wider. TWENTY-SECOND: That the wrongful taking of the plaintiffs' lawn aforedescribed has and will substantially lessen the enjoyment by the plaintiffs and their successors of the property which is used solely as their personal residence. That as a result of the afore- said wrongful taking and the construction of the highway described in paragraph eight above, the flow of rain water from the highway has been substantially increased and has been diverted onto plaintiffs' lawn and into their basement. In addition, snow plowing of the road in its widened configuration will result in snow, road salt and other contaminates being dumped on top of the plaintiffs well which is their sole source of water. TWENTY-THIRD: That the wrongful conduct of the defendant afore - described has and will cause irreparable injury to the plaintiffs and will render any judgment for money damages obtained by the plain- tiffs of no avail and or ineffective. TWENTY-FOURTH: That the plaintiffs have a right to the final re- lief of mandamus against the defendant. SECOND CAUSE OF ACTION For a second, separate and distinct cause of action the peti- tioners reallege each and every allegation set forth in paragraphs numbered 111" through 1124" above. TWENTY-FIFTH: That the wrongful conduct of the defendants alleged above has diminished the value of the plaintiffs' property and otherwise caused damage to the plaintiffs in the amount of $20,000.00. WHEREFORE, the plaintiffs respectfully pray for the following relief: 1. That the Court Order the defendants to remove all pave- ment, drainage pipe and shoulder from the east side of South Danby Road that extends beyond the old edge of the pavement; 2. In the alternative, that the Court award in favor of the plaintiffs and against the defendants money damages in the amount of $20,000.00 to repair damage and return the condition of the pro- perty to that prior to May 1, 1987; and, 3. That the Court grant to the plaintiffs and against the defendants such other and different relief as to the Court seems just and proper. ROBERT T. JEWETT Attorney for Plaintiffs Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0314 STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, HERBERT J. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to my own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. V=Z?f z HERBERT V. ENGM Sworn to before me this �( may of December, 1987. cf Maw York — 417 NOTARY PUBLIC Caaalthcxi s9 Tntn��y� �, py �y�, Commi�sivn;irsvi�r 30, 1n,: STATE OF NEW YORK ) COUNTY OF TOMPKINS) ss.: INDIVIDUAL VERIFICATION I, RONDA C. ENGMAN being duly sworn, depose and say: I am the foregoing Plaintiff in the within action; I have read the foregoing Verified Complaint and know the contents thereof; the same is true to ray own knowledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. Sworn to before me this )` day of December, 1987. I NOTARY PUBLIC `l r. RONDA C. ENGMAN ESTHER WFUK Notary Pam. e4ft of bl&w York Nw 4;2i417 CC puanfrod wi Tom Vi o � 9.�1. rnmmiss1Gt1 V" ?M Ki 6:;�--�ii RECE►,410 lONF'XFNa GOti!�t't GL=:RK FAY STATE OF NEW YORK SUPRFMF COURT COUNTY OF TOMPKINS ------------------------------------------- HERBERT J. ENGMA_'J and RONDA C. ENGMAN, '1aintirfs= vs. TOMPKI ITS COUNTY and WILLIAM J. MOBBS , Commissioner of, ?ubii6 Wor%s of Tompjti ns County, Neu York, Defendants. AMENDED VERIFIED COMPLAINT INDEX NO. R.J.I. NO.0'b3s� IZ ds� The plaintiffs HERBERT J. ENGMAN and RONDA C. ENGMAN', for their Amended Verified Complaint allege and set forth as follows: FIRST: Each and every allegation set forth in each and every yaragraph in the plaintiff's Verified Complaint verified by the plaintiff Herbert J. Engman on the 4th day of December, 1987 and .-)y the plaintiff Ronda C. Engman on the 3rd day of December, 1987 is '-tereby realleged an�2 set forth main by reference as though fully sit anew. SECOND: That the defendants have acquired no right title or interest to the land of any sort pursuant to the provisions of f;^coon 189 of the High? -ray La?tip described in paragraph numbered "FOURTH" of the plaintiffs' aforesaid original Verified Complaint. THIRD: That the plaintiffs' stono wall which is more ,particularly described in paragraph numbered "THIRTEENTH" of the aforesaid original Verified Complaint of t`e plaintiffs' doer not substantially interfor^ s* _th the pu'.alic use of South Danby Road and is not a public nuisance. A FOURTH: That Lois L. Atkinson conveyed title to the plaintiffs' as tenants by the entirety to the lands more described in paragraph numbered "THIRD" of the plaintiffs' aforesaid original. Verified Complaint by deed dated May 27, 1977 which deed was recorded on May 27, 1977 in the Tompkins County Clerk's Office in Book 557 of Deeds at page 666. A true copy of said deed is attached to the aforesaid original Verified Complaint of the plaintiffs' as Exhibit "All FIFTH: That the *,re8terly boundary of the Marcel conveyed by the deed described in paragraph FOUPTTH above is described as heinc a straight line running Al 240-00'-00" I-7 a distance of 276.50 feet front a chiseled cross lin a concrete culvert to a :yet iron pin. The said strait ht line: is described as running, parallel to the ' centerline of Crumtoi-in (South Danby) Road at a distance of 25 feet from said. centerline. SIXTH: That the aforedescribed parcel was previously conveyed to the said LOIS L. ATKINSON by Earl J. Hallett by deed dated March 11, 1977 and recorded in the Tompkins County Clerk's Office on March 11, 1977 in 13,,,)ol4r 556 of Deeds at page 413 and said deed 0,cscribes the westerly line, of said parcel in the same manner as set forth in.paragraph FIFTH above. SEVENTH: That the said parcel was previously conveyed to Earl J. Hallett by David J. Stastny and Donna L. Stastny by -deed dated June 5, 1976 an,". recorded in the Tompkins County Cler':'s Office on June 7, 1976 in Book 551 of Deeds at page 796 and describes the westerly line of saP parcel in the same manner as is set forth in paragraph FIFTH above. r EIGHTH: That the said parcel was previously conveyed by Opal S. Rajala to David J. Stastny and Donna L. Stastny by deed dated November 26, 1974 and recorded on January 3, 1.975 in the Tompkins County Clerk's Office in Book 539 of Deeds at page 67 and describes tho westerly boundary of said parcel in the same manner as set forth in paragraph:FIFTH above. .- NINTH: That the said parcel conveyed by Opal S. Rajala to David J. Stastny and Donna L. Stastny by deed dated November 26, 1974 was a *portion of the premises conveyed to L. Matt Rajala and Opal S. Rajala as tenants by the entirety by John J. Rajala and Hilja H. Rajala by de-d dated March 8, 1946 and recorded March 25, 1945 in the Tompkins County Clerk's Office in Boot{ 285 or Deeds at :a-e 453. L. Matt Rajala died October 12, 1974. TENTH: That the above recited chain of title constitutes the correct and complete chain of title between the plaintiffs and John J. and Hilja H. Rajala. ELEVENTH: That the aforesaid deed from John J. Rajala and Hilja H. Rajala to L. Matt Rajala and Opal S. Rajala describes \ i the lands which were subsequently conveyed to the plaintiffs by c',eed from Lois L. Atkinson (Dead dated May 27, 1977; 557/666) as j bounding on the west by the highway. TWELFTH: That the easterly edge and limit of the highway at the time of the conveyance from John J. Rajala and Hilja H. Rajala to L. Matt Rajala and Opal S. Rajala (Deed dated March 8, 1946; 285/452) was substantially as it was immeeiately before the defendants bean the i,71dening operations of which the plaintiffs complain in. their aforesaid original verified Complaint. THIRTEENTH: That when the said Opal S. Rajala conveyed the said parcel to Davin S. Stastny and Donna L. Stastny by deed f',ated November 26, 1974 aforesaid, all right title and interest of record to the lands immediately to the west of the westerly boundary of the parcel as shown by the incorporated survey of Weiler Associates dated October 12, 1974 (that is to say, the area described More specifically in paragraph "FOURTH', of the plaintiffs' aforesail d original Verified Complaint, which area of land is hereinafter described as the "disputed land") remained vested in the person of Opla S. Rajala- FOURTEENTH: That it is from said Opla S. Rajala that the i'lairtiffs and the predecessor in interest have acquirer' title to the disputed land by adverse possession in a manner more particularly described beloFr. FIFTEENTH: That the entry upon the disputed land by the \. 11aintiffs and their said predecessor in interest L•ois L. Atkinson was hostile and under claim of right; it was actual; it was open i and notorious; it was exclusive; anc? it was continuous for a period of more than 10 years. SIXTEENTH: That the plaintiffs since May 27, 1977 and until tip-1c, time com-lai ned of continuously ly actually entered upon and have 1�1 '.)pie-n in possession of the disputed land, have held such land to the exclusion of Ocala S. Rajala, the defendants herein anr' all others. The- plaintiffs since May 27,, 1977 have cultivated all the disputed land continuously, treating it variously as either :heir lawn or the herb or flower gardens. The plaintiffs have moored, seeded and other=•rise cultivated all of the disputed land. 'The ol;aintif fs' have enclosed a portion of the disputed land with a stone wall nhich is the subject of a counterclaim in this action by the defendants..,The plaintiff Ronda C. Engman did in July, 1987 physically confront defendant: agents who trespassed upon the disputed lands and did attempt to repel said trespassers. The plaintiffs have since May 27, 1977 on numerous occasions, personally and by mail, told the defendants that the plaintiffs own the disputed lands to the exclusion of all others. The fact and nature of the plaintiffs claim has long been known by the defendants and throughout the neighborhood. SEVENTEENTH: That the plaintiffs immediate predecessor in interest, Lois L. Atcinson during her ownership aforedescribed treated the disputed lands as her own hostilly and under claim of right, continuously, actually, openly and notoriously, exclusively and continuously in the manner described in paragraph "FIFTEENTH" above by having her agents, contractors, subcontractors, realtors, and other workmen enter and exit across the disputed lands with trucks and other vehicles and equipment in conjunction with the construction of a single family dwelling upon the adjacont premises to the east and by grading and otherwise preparing the disputed land .for the purchase, occupancy and use by the plaintiffs as their home. WHEREFORE, the plaintiffs respectfully pray for the following relief: 1. That the court Order the defendants to remove all pave - meet, drainage pipe and shoulder from the east side of South Danby Road that emends beyond the old edge of the pavement; 2. In the alternative, that the Court award in favor of the plaintiffs and against the defendants money damages in the amount of $20,000.00 to repair damage and return the condition of the property to that prior to May 1, 1987; and 3. That the Court grant to the plaintiffs and against the defendants such other and different relief as to the Court seems just and proper. ROBERT T. ,:dEW TT Attorn3y for Plaintiffs Office anA Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0311 STATE OF NEW YORK ) COUNTY OF TOMPKINS ) SS: INDIVIDUAL VERIFICATION I, HERBERT J. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foraiioing Amended Verified Complaint and know the contents thereof; t*ae same is true to my own knovledge, except as to the matters therein stated to be alleged on information and belief, and as to those matters I believe it to be true. ,.,Swoca to before me this 30tW -day of December, 1989. NOTP4 Y PUBLIC STATE OF NEW tWk COUNTY OF TOMPKINS SS: HtRbERTVJ - E?JQKAN 2 1-%J R '�� R T T. i E % F TT NOTARY PU-81.10 COMM. EXP. ,4-jO4'6 QUALIFIED 114 CORTLAND COUNT 10 REC, NO. 4674753 INDIVIDUAL VERIFICATION I, RONDA C. ENGMAN being duly sworn, depose and say: I am the Plaintiff in the within action; I have read the foregoing Amended Verified Complaint and know the contents thereofi tiie same is true to my own knowledge, except as to tho matters therain stated to be alleged on information and belief, and as to those matters I balieve it to be true. RONDA C. ENGMAN Si...ined and sworn to before me this 30th day of December, 1989. ROBERT NOTARY i COMM. EX?, i-j(;Q(' QUALIFIED IN CORILAtD NOTARY PUI;L.Tc" REG. NO. 4�;'L475! i :RTC MULVEY INTY ATTORNEY CURT MOUSE ITHACA NY STATE OF NEW YORK : SUPREME COURT APPELLATE DIVISION : THIRD DEPARTMENT -------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, VERIFIED ANSWER TO AMENDED COMPLAINT Plaintiffs -Respondent -vs- Index No. 88-511 RJI No. 88-0356-a COUNTY OF TOMPKINS and WILLIAM J. Hon. Robert S. Rose MOBBS, Commissioner of Public Works, Defendants -Appellants The defendants Tompkins County and William J. Mobbs, as Commissioner of Public Works, Tompkins County, New York, individually and on behalf of the County of Tompkins, in answer to the amended complaint herein, alleges as follows: 1. That the defendants repeat each and every allegation set forth in the defendants' Amended Verified Answer to plaintiffs' original Verified Complaint, and hereby incorporates same by reference hereto. 2. That the defendants deny each and every allegation set forth in paragraphs "second," "third," "twelfth," "fourteenth," "fifteenth," "sixteenth," and "seventeenth." 3. That the defendants lack knowledge or information sufficient to form a belief with respect to the allegations set forth in paragraphs "fourth," "fifth," "sixth," "seventh," "eighth," "ninth," "tenth," "eleventh," and "thirteenth." i AS AND FOR A FIRST AFFIRMATIVE DEFENSE 4. That the defendants repeat and reallege each of the allegations set forth above with the same full force and effect. 5. That the South Danby Road, also known as County Road No. 125, was a town highway in the Town of Danby prior to becoming a County road. 6. That upon information and belief, said highway became a town highway by use. 7. That following the passage of the Highway Law of 1909, Chapter 30 of the Laws of New York, the aforesaid town highway, formerly known as Crumbtown Road, and currently known as South Danby Road, or County Road No. 125, became a part of the County highway system. 8. That said road was a town highway for many years and, accordingly, pursuant to §189 of the Highway Law, has been opened to a width of at least three rods. 9. That County Road No. 125, at the point where the pre- mises owned by the plaintiffs adjoin said road, is a total width of three rods, a distance of 24 ft. gin. on either side from the center line thereof, which area includes the stone wall referred to in plaintiffs' complaint. 10. That upon information and belief, the public has con- tinually used the entire width of three rods for the purpose of snow removal, drainage, and other maintenance for a period of more than ten years. ERT C MULVEY UNTY ATTORNEY COURT NOOSE ITHACA. NY 2 I RT C MULVEY VTY ATTORNEY ?URT MOUSE iHACA NY AS AND FOR A SECOND AFFIRMATIVE DEFENSE 11. That the defendants repeat and reallege each of the allegations set forth above with the same full force and effect. 12. That the complaint fails to state a cause of action. AS AND FOR A COUNTERCLAIM ON BEHALF OF DEFENDANT TOMPKINS COUNTY AND AGAINST PLAINTIFFS 13. Upon information and belief, the plaintiffs are record owners of real property known as 571 South Danby Road in the Town of Danby, County of Tompkins, State of New York. Said property is more particularly described in a deed recorded in the office of the Tompkins County Clerk in Libre 557 of Deeds at page 666 on May 27, 1977, a copy of which is attached hereto as Exhibit A. 14. That the description of the property set forth in the aforesaid deed establishes that the plaintiffs' title abuts the easterly boundary of defendant's premises, referred to as County Road 125. 15. That prior to February 29, 1984, the plaintiffs erected a stone wall parallel to the center line of said County Road 125 wholly within the bounds of said highway. 16. That the plaintiffs have been duly notified orally and in writing that said stone wall constitutes an obstruction, and plaintiffs have failed to remove same. WHEREFORE, the defendants demand judgment dismissing the complaint herein and directing the plaintiffs to remove the afore - described stone wall pursuant to Section 103-a of the Highway Law I ) L 3 of the State of New York, together with such other and further relief as to the Court may seem just and proper. Dated: January / 9 , 1990 ROBERT C. MULVEY Tompkins County Attorney and Attorney for the Defendants Tompkins County Courthouse 320 North Tioga Street Ithaca, New York 14850 (607) 274-5546 BERTC MULVEY ',OUNTY ATTORNEY COURTHOUSE ITHACA NY 4 VERIFICATION STATE OF NEW YORK ) ss: COUNTY OF TOMPKINS ) WILLIAM J. MOBBS, being duly sworn, deposes and says that I am one of the defendants in the above -entitled action; that I have read the foregoing Verified Answer to Amended Complaint and know the contents thereof; the same is true to my own knowledge, except as to those matters therein stated to be alleged upon information and belief, and as to those matters, I believe them to be true. illiam J. Iy bbs, Commissioner Tompkins County epartment of Public Works Sworn to before me this day of January, 1990. CHERYL A. NELSON = �v neg. No 4715127 Notary Public Notary Public, State of ��ev: York Qualified in Tompklrl Coyrtty Commissioi i:xpires .3I..0 7 --RTC MULVEY LINTY ATTORNEY :OURT MOUSE ITHACA NY aL- . I -A. r -ww- ^ II 1014iii 11.ay 27, i5emm LOIS L. ATKINSON, of SlaterVille, New York, 1977 party of the first part, and HERBERT J. ENGNAN and RONDA C. E`Cv.A_N, husband and wife, both of 522 West Ridge Road, Williamson, New York, as tenants by the entirety, party of lbc sccotul part. Mllulq!3114 thal 11u parly of !hc fiat purl, ,n Coastdcrulioa o -------------------ONE--------------------------- Dollars ($1.00------) lawful money of the Umitrd St:.'es. and other good and valuable consideration puiel Ly Mepurl)• of !bc seeo,ul part, does hereby grant and rcicrae unln the poly of !hc second part, the lairs or successors and assigns of thr party of the second part forcer, all THAT TRACT CR PARCEL OF LA_"M situate in the Town of Danby, County of Tompkins and State of New York, bounded and described as follows: COMMENCING at an iron pin set in the easterly side of the South Danby Road, which point is 2316+ feet southerly from the center line of Peters Road and marks the southwest corner of lands now or formerly of M. Daggart; runninq thence South 89' 12' 11' East 250 feet to an iron pin; thence South 24' East 276.5 feet to an iron pins thence North 690 12' 11' hest 250 feet to a chiseled cross in a con- crete culvert; thence North 24• West 276.5 feet to the place of beginning, containing 1.44 acres of land according to a survey made by Weiler Associates October 12, 1974. BEING the same premises conveyed to the grantor herein by deed frcm Earl J. Hallett and recorded in the Tompkins county Clerk's Office on March 11, 1977 in Liber 556 of Deeds at Page 413. Town of Danby Tax Parcel No. 28-1-16.1 Grantee Mailing Address: -24- t I V t 2 REGAL ESTATE MAY 2 7 1�2r7 TRANSF'2 P.X TGMt .:i::S cool 1i Y r therein named by dehvenng to, and leaving personally with s� S' o at the time and azc of T aforesaid to the best Of dcpondant -b11ry r .•.-- d endent describes person served as _ -- X10 ('1TE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS ------------------------------------ HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, Vs. TOMPKINS COUNTY and WILLIAM J. MOBBS, Comissioner of Public Works, Defendants. --------------------------------------- 6vyI VERIFIED REPLY TO COUNTERCLAIM Index No . 'g-e-s?/ RJI No .9-f-- -63S-1 tz-o S e. The plaintiffs, being duly sworn, for their Verified Reply to the defendants Counterclaim, depose and state as follows: 1. ADMITS the allegations set forth in paragraph numbered 115" of the defendants Counterclaim. 2. DENIES the allegations set forth in paragraph s 11611, 11 711, and "8". WHEREFORE, the plaintiffs demand judgement against the defendants dismissing the defendants' Counterclaim and granting the plaintiffs costs and disbursements and such other and different relief as to the Court seems just and proper. ROBERT TTf4olLaintiffs T Attorney Office and Post Office Address 55 Main Street Cortland, New York 13045 Telephone: (607) 753-0314 r I\ VERIFICATION STATE OF NEW YORK COUNTY OF 0_0277L.4A/b) ss .: 4 HERBERT J. ENGMAN, being duly sworn, deposes and says: I am one of the plaintiffs in the above -entitled actionvj - have read the foregoing Verified Reply and know the contents;`;; thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. Sworn to before me this 574 day of February, 1988. 1�r " 1 . NOTARY PUBL STATE OF NEW YORK ) COUNTY OF CCtrt AJL-, ) ss . 7111TERT T. r MAN ROOBER T T. JF ETT NOTt,RY PUBLIC COMM. EXP. 3-30-_ QUALIF.'EL rm CORTLAUD COUNTY NY REG. NO. 4674753 RONDA C. ENGMAN, being duly sworn, deposes and says: I am one of the plaintiffs in the above -entitled action; I have read the foregoing Verified Reply and know the contents thereof; the same is true to my own knowledge, except as to matters therein stated to be alleged on information and belief, and as to those matters, I believe them to be true. Sworn to before me this 5'714 day of February, 1988. ul'_�� 44'11� NOTARY PU C RONDA C. ENGMAN RJPErkT T. J=:: ETT NOTt'rY PLELlC COMM. EXP. 3-30-_ QUALIFIED IN CCRTLAUD COUNTY NY REG. NO.4674753 uvvW n Sir: Take notice of an of which the within is a copy, duly granted in the within entitled action, on the day of 19— , and duly entered in the office of the Clerk of the County Of on the day of 19 Dated , N. Y., 19 ROBERT I. WILLIAMSON Attorney for County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Tona to d _ 0 Nor Attorney for !isf�i l^ .l.i N;1(i;) r h'7fciN%1 ':3A,_3 J.j IIVDE88-511X NO. YEAR 19 STATE OF NEW YORK SUPREME COURT County of TOMPKINS HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs -vs- COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissione of Public Works of Tompkins County, New York, Defendants J U D G M E N T Attorney for the County of Tompkins Office and Post Office Address County Court House 320 North Tioga Street ITHACA, NEW YORK 14850 Due and personal service of the within is admitted this day of 19 Attorney for O 9 0 0 d g�'o�� p; H CT' o s O 0 w a� n� „ o o Q .p N N CC 9 CT" � � K N :7-M W : P" a- S O rL 00 o :s n � O O R °' O .0 •� < O w w y �' ra n "L� � co ••e `Q z oP o o P. N v fy'f ao n 0 #tab of Xrw lark, OF that he is (PERSONAL ss.: being duly sworn deposes and says in this action; that ,_he read the foregoing and knows the contents thereof: that the same is true to the knowledge of deponent, except as to the matters therein stated to be alleged on information and belief, and that as to those matters he believes it to be true. Sworn to before me, this *txtr of Nrw lurk, OF (CORPORATION VERIFICATION) ss.: being duly sworn, deposes and says that —he is the of the corporation named in the within entitled action; that he has read the foregoing and knows the contents thereof: and that the same is true to h—own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters— he believes it to be true. Deponent further says that the reason this verification is made by deponent and not by is because the said is a corporation and the grounds of deponent's belief as to all matters in the said not stated upon h own knowledge, are investigations which deponent has caused to be made concerning the subject matter of this and information acquired by deponent in the course of h—duties as an officer of said corporation and from the books and papers of said corporation. Sworn to before me, this Otxtr of Xrw York, OF (AFFIDAVIT OF PERSONAL SERVICE) ss.: being duly sworn, deposes and says; I am over 18 years of age, not a party to this action and reside in the State of New York. That on the day of at M. at New York upon therein named by delivering to, and leaving personally with said a true copy of each thereof depondent describes person served as aforesaid to the best of depondents ability at the time and circumstances of service as follows: sex: color: hair: app. age: app. ht appt. wt: other identifying features; PRESENT At a Trial Term of the Supreme Court of the State of New York, held in and for the Sixth Judicial District, at the Tompkins County Courthouse in the City of Ithaca, New York, commencing on the 26th day of February, 1990. HON. ROBERT S. ROSE, Justice Presiding STATE OF NEW YORK SUPREME COURT COUNTY OF TOMPKINS ---------------------------------------- HERBERT J. ENGMAN and RONDA C. ENGMAN, Plaintiffs, VS. COUNTY OF TOMPKINS and WILLIAM J. MOBBS, Commissioner of Public Works of Tompkins County, New York, Defendants. ---------------------------------------- JUDGMENT Index no. 88-511 RJI no. 88-0356 The issues in the above -entitled action having duly come on to be heard before Justice Robert S. Rose, without a jury, at a trial term of this Court commencing on the 26th day of February, 1990, and the issues having been duly tried on that day and the plaintiff having duly appeared by Robert T. Jewett, Esq., their attorney, and the defendants having duly appeared by Robert C. Mulvey, Esq., Tompkins County Attorney, and the proofs of both parties having been adduced and the respective counsel having been duly heard, and the Court, after due deliberation, on the 18th day of May, 1.990, having made and filed a decision in writing in favor of the defendants and against the plaintiffs and directing the entry of judgment in accordance with said decision, NOW, on motion of Robert C. Mulvey, Tompkins County Attorney, as attorney for the defendants, it is ROBERT C MULVEY COUNTY ATTORNEY COURT HOUSE ITHACA NY ROBERT C MULVEY COUNTY ATTORNEY COURTHOUSE ITHACA NY ORDERED, ADJUDGED AND DECREED, that the plaintiffs' amended complaint herein be and hereby is dismissed in all respects, and it is further ORDERED, ADJUDGED, AND DECREED, that the plaintiffs have a prescriptive right of use over the area of the public right of way in County Road number 125 necessary to provide the plaintiffs with access to the existing driveway for their premises described in a deed recorded in the Tompkins County Clerk's Office in liber 283 at page 432; and it is further ORDERED, ADJUDGED, AND DECREED that the counter claim set forth in the defendants' amended answer herein be and hereby is in all respects granted and the plaintiffs be and hereby are directed to remove that portion of plaintiffs' stone wall erected west of the plaintiffs' westerly boundary line as shown on a survey map entitled "Map of part of lands of Opal S. Rajala being conveyed to David Stastny, County of Tompkins, Town of Danby, State of New York" by Weiler Associates, Horseheads, New York dated October 12, 1974, which map was filed in the Tompkins County Clerk's Office on January 3, 1975, such removal to be completed within days of service of a copy of this Judgment upon plaintiffs' counsel. Judgment signed this day of 1990. ENTER, / J.S.C. ai LLA RioA r. • i:f.•.1.-• .• Dv of. ME f +1V{., }?ii art> �ei.•7:stems s s•' ��'�� .o.seew••s„«..•...........-.... �'� q�,iseit'so➢�3e'��GWdd�.,.,..£,_� (((�/// Q �• RECEIVED TOMPKINS CCUtitY CLERK Jury S 2 11 PM 190 �,, r,. f _,