GF filed a lawsuit in the Jefferson County Supreme Court against the Town of Lorraine, claiming that the latter had wrongfully appropriated a part of his property when it widened a road (known as Miller Road).
When the parties sought a pre-trial determination (via summary judgment) in their respective favors, the presiding justice aligned with the Town, and dismissed the case. And, of course, an appeal ensued.
Interestingly, the Appellate Division, Fourth Division, didn’t think the Town was entitled to the grant of its motion, and reinstated the lawsuit. Apparently, it was of the view the local government hadn’t unequivocally established that a “wrongful taking” hadn’t occurred. To that end, the Town was required to show that the road was a “public highway,” as defined by state law. And in order to meet that definition, the government was required to demonstrate that “`for a period of at least 10 years, the road at issue was used by the public and the municipality exercised dominion and control over the road … Such a showing … requires more than intermittent use by the public and more than occasional road work by the municipality.’” Since it failed to make that demonstration, the AD4 vacated the grant of relief in the Town’s favor.
Similarly, since GF failed to evince that “either that Miller Road was not a public highway or that defendants engaged in a taking of his property without compensation by improperly widening the road during the recent maintenance,” he also wasn’t entitled to pre-trial relief, either. (Given that a local government, in furtherance of the “public’s right of travel,” is “permitted to maintain and improve” a public highway and may lawfully extend beyond the existing width by “at least three rods” -- or 49.5 feet -- the AD4 thought that GF alternatively needed to show that the lawful limit had been exceeded.)
Now that’s our cue to hit the road ….
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