Calendar Date: March 28, 2018Before: Garry, P.J., McCarthy, Lynch, Clark and Pritzker, JJ.__________Law Office of Sharon M. Sulimowicz, Ithaca (Sharon M.Sulimowicz of counsel), for appellants.The Crossmore Law Office, Ithaca (Edward Y. Crossmore ofcounsel), for respondents.__________McCarthy, J.Appeals (1) from an order of the Supreme Court (Rumsey,J.), entered August 3, 2016 in Tompkins County, which, amongother things, partially denied plaintiffs’ motion for summaryjudgment, and (2) from a judgment of said court, entered March29, 2017 in Tompkins County, upon a decision rendered partiallyin favor of defendants.Plaintiffs purchased 938 East Shore Drive (hereinafter thelake side property) in the Town of Ithaca, Tompkins County andbuilt a residence on it. The property is located on the shore ofCayuga Lake and lacks both on-site parking and direct access toEast Shore Drive, which is also known as State Route 34. To gainaccess to the lake side property, plaintiffs have an eight-footwideright-of-way, essentially a stairway from the road leveldown a slope to the lake side property, over the parcel at 932East Shore Drive (hereinafter the road front property). Thatparcel has approximately 140 feet of road frontage, as well as ashack that is used for storage. Two years after purchasing thelake side property, plaintiffs purchased the road front propertyto, among other things, secure parking along Route 34.Defendants are neighbors of plaintiffs who similarly resideon lake side parcels that lack on-site parking and direct accessto Route 34. Defendants were also granted easements for ingressand egress over the eight-foot-wide right-of-way that is locatedon the road front property. For many years before plaintiffspurchased the road front property, defendants and others parkedin two areas along the 140-foot-strip abutting Route 34 thatplaintiffs contended were on their property: (1) a gravel parkingarea containing three pull-in spots where vehicles parkperpendicular to the road and (2) an area on the shoulder ofRoute 34 with room for approximately five vehicles to parkparallel to the road (hereinafter collectively referred to as thedisputed parking areas). The stairway in the right-of-way islocated directly next to the gravel parking area, on the sidecloser to, and somewhat behind, the parking area along theshoulder of the road.Plaintiffs commenced this action for trespass seeking,among other things, to enjoin defendants from parking in thedisputed parking areas. Their premise was that the road sideproperty extended to the center line of Route 34 and, therefore,plaintiffs owned the disputed parking areas in fee and hadcontrol over them. Defendants joined issue and assertedaffirmative defenses, and one defendant asserted a counterclaim.Plaintiffs moved for a preliminary injunction enjoiningdefendants from parking in the disputed parking areas. SupremeCourt denied the motion. Plaintiffs then built a retaining walland extended the gravel parking area (hereinafter thereconstructed gravel area) in an effort to secure exclusiveparking spots along Route 34. Plaintiffs also moved for partialsummary judgment striking the affirmative defenses andcounterclaim. In an August 2016 order, the court dismissed thecounterclaim but found triable issues of fact regarding theaffirmative defenses. Plaintiffs appealed from the August 2016order.While the appeal was pending, the action proceeded to abench trial. In a March 2017 judgment, Supreme Court concludedthat the boundary of the road front property ran to the centerline of Route 34 and that property was subject to a 49.5-footright-of-way for public highway purposes. The court stated thatplaintiffs could not prevent others from parking vehicles withinthe bounds of Route 34 unless those others unreasonablyinterfered with plaintiffs’ rights of ingress and egress. Thecourt enjoined defendants and their agents and guests fromparking in the reconstructed gravel area or between that area andRoute 34, and “from otherwise obstructing or interfering withplaintiffs’ access thereto.” Supreme Court further adjudged thatdefendants and others “may make use of the remaining area withinthe bounds of . . . Route 34 abutting plaintiffs’ property on afirst-come, first-serve basis; provided, further, that no suchperson — including plaintiffs — shall park or store a vehicleindefinitely or otherwise attempt to interfere with the rights ofany other person to park within that area.” The court dismissedtwo affirmative defenses. Plaintiffs also appealed from theMarch 2017 judgment.The appeal from the August 2016 order must be dismissedbecause “the right to appeal from a nonfinal order terminatesupon entry of a final judgment” (State of New York v Joseph, 29AD3d 1233, 1234 n [2006], lv denied 7 NY3d 711 [2006]; accordMcCormack v Maloney, 148 AD3d 1268, 1268 [2017]). Nevertheless,the appeal from the March 2017 judgment brings the August 2016order up for review (see CPLR 5501 [a] [1]; Durrans v Harrison &Burrowes Bridge Constructors, Inc., 128 AD3d 1136, 1137 n 2[2015]).Plaintiffs argue that Supreme Court should have grantedtheir summary judgment motion in its entirety, includingdismissing the three affirmative defenses. The arguments withrespect to the first two affirmative defenses have been renderedacademic because the court ultimately dismissed those defensesafter trial. In the third affirmative defense, defendantsalleged that, even if plaintiffs owned the disputed parkingareas, defendants and all members of the public were entitled topark vehicles in those areas. On the motion, the partiessubmitted evidence raising questions as to whether plaintiffsowned to the center line of Route 34 or only to the edge of theroadway, whether defendants could safely park elsewhere andwhether defendants’ use of the disputed parking areasunreasonably interfered with plaintiffs’ access to their property(see Bryer v Terleph, 69 AD3d 894, 895-896 [2010]). Based onthese triable factual issues, the court properly refused todismiss the third affirmative defense.In the judgment after trial, plaintiffs prevailed inSupreme Court’s determinations that they own to the center lineof Route 34 and that they had the exclusive right to park in thereconstructed gravel area. Plaintiffs contend that the courterred in relying on the Second Department’s decision in Bryer vTerleph (supra) because the rule set forth therein — that alandowner may not prevent individuals from parking their vehicleson a highway adjoining the landowner’s property unless suchparking unreasonably interferes with his or her right of ingressor egress — does not apply if the landowner holds fee title tothe center line of the abutting highway. Plaintiffs furtherassert that, even if that decision is applicable, the court erredin finding both that defendants have not unreasonably interferedwith plaintiffs’ right of ingress and egress and that there areno safe alternative locations for defendants to park.In Bryer v Terleph (supra), the Court stated that “anabutting owner cannot ordinarily prevent others from parkingtheir vehicles on a street adjoining his or her property unlessthey unreasonably interfere with his or her right of ingress andegress” (id. at 895), and denied summary judgment because therewere factual issues as to whether “the defendants’ continualparking of one of their vehicles in the parking area in front ofthe plaintiff’s parcel unreasonably interferes with theplaintiff’s right of ingress and egress and whether there is asafe alternative place for [one of the defendants] to park hervehicle” (id. at 896). The facts in that case were strikinglysimilar to those here, except that the decision implies that theplaintiff owned to the edge of the highway rather than to thecenterline (id. at 895). Plaintiffs seize on that difference,asserting that it demands a different outcome. They argue thattheir fee ownership of the bed of the highway gives them asuperior right over all others for all uses except travel, whichthey assert is the purpose of the public highway easement. Wedisagree.“An owner of land adjoining a highway or street possesses,as an incident to such ownership, easements of light, air andaccess, from and over the highway in its entirety to every partof his or her land, regardless of whether the owner owns the feeof the highway or street itself” (Matter of Scoglio v County ofSuffolk, 85 NY2d 709, 712 [1995]; see Matter of Ken Mar Dev.,Inc. v Department of Pub. Works of City of Saratoga Springs, 53AD3d 1020, 1024 [2008]; Matter of McNair v McNulty, 295 AD2d 515,151 [2002], lv dismissed 99 NY2d 552 [2002], lv denied 99 NY2d510 [2003]). Virtually since the inception of public highways,however, the law has held that even if a person owns fee title toproperty over which a public highway runs, the public has ahighway easement and may use the property for travel and purposesauthorized by the easement (see New York State Pub. Empls. Fedn.,AFL-CIO v City of Albany, 72 NY2d 96, 101 [1988]; Reformed Churchof Gallupville v Schoolcraft, 65 NY 134, 150-151 [1875]). “Theright to use of the highways is said to rest with the wholepeople of the State, not with the adjacent proprietors or theinhabitants of the surrounding municipality[,] . . . [and t]hispublic right is absolute and paramount” (New York State Pub.Empls. Fedn., AFL-CIO v City of Albany, 72 NY2d at 101 [internalquotation marks and citation omitted]). “[W]hen the highway isused for any public purpose not inconsistent with or prejudicialto its use for highway purposes, the mere disturbance of therights of light, air, and access of abutting owners on such ahighway by the imposition of a new use, consistent with its useas an open public street, must be tolerated by them” (Matter ofMcNair v Mcnulty, 295 AD2d at 515). In that vein, in the modernera the Court of Appeals has eschewed a narrow restriction on theright to use public highways, such as that proffered byplaintiffs, noting that the term highway use “includes use forparking as well as travel purposes” (New York State Pub. Empls.Fedn., AFL-CIO v City of Albany, 72 NY2d at 102). Accordingly,Supreme Court properly ruled that plaintiffs cannot preventothers from parking their vehicles within the highway easement onthe road front property along the shoulder of Route 34, unlessthose individuals unreasonably interfere with plaintiffs’ rightof ingress and egress (see Bryer v Terleph, 69 AD3d at 895; 65 NYJur 2d Highways, Streets, and Bridges § 273; but see Decker vGoddard, 233 App Div 139, 140 [1931]).Finally, Supreme Court did not err in finding thatplaintiffs’ right of ingress and egress was not unreasonablyimpeded by defendants and others parking within the highwayeasement along the road front property. In reviewing a judgmentafter a bench trial, this Court’s power is as broad as that ofthe trial court, and we may render judgment as warranted by thefacts, though we take into account the trial court’s advantage ofhaving observed the witnesses (see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983]; Nemeth v K-Tooling, 100 AD3d 1271, 1272 [2012]). Therecord contains conflicting testimony regarding whether there wassufficient space to park to the north of the disputed parkingareas and across the road, and whether parking in those areaswould be safe. The evidence supports the conclusion that thesafest place to park for defendants and others similarly situatedwas within the highway easement along the road front property.The record also contains testimony and photographsindicating that, at times, defendants and others had parked theirvehicles in ways that had blocked plaintiffs in. Some evidencedemonstrated that defendants and others parked vehicles too closeto the top of the stairway to permit use of the eight-foot rightof-way to gain access to the lake side property. There was alsoevidence that defendants and others parked too close to the shackon the road front property, making it difficult or impossible forplaintiffs to remove items such as bicycles and kayaks. Otherevidence, however, indicated that parked vehicles did not impedeaccess to the stairway or the storage shack. Supreme Courtproperly considered the facts and the rights of the parties inissuing injunctions giving plaintiffs exclusive use of thereconstructed gravel area, as well as the space between that areaand the highway, and allowing the parties and all members of thepublic to use the remaining area of Route 34 abutting the roadfront property — an area within the highway easement — forparking on a first-come, first-serve basis, but prohibitinganyone from parking a vehicle there indefinitely or otherwiseattempting to interfere with the rights of any other person topark within that area.Garry, P.J., Lynch, Clark and Pritzker, JJ., concur.ORDERED that the appeal from the order is dismissed.ORDERED that the judgment is affirmed, with costs.ENTER:Robert D. MaybergerClerk of the Court
