SUPREME COURT COUNTY OF CHAUTAUQUA
NORMAN G. SEAGREN,
HARRY E. SARVIS
Plaintiffs, INDEX NO. H-11,861
RICHARD E. ECKLUND
VIRGINIA A. ECKLUND,
SPOTO & SLATER
(Kevin J. Sirwatka, Esq.
of Counsel) for Plaintiffs
JAMES E. WESTMAN
Attorney for Defendants
DECISION and ORDER
Defendant moves to settle the order based on the
August 21, 1995 Decision announced from the bench by
this Court. A review of the facts and written recital
of the Decision of this Court should clear the air.
Plaintiffs own property on the shore of Chautauqua
Lake on both sides of an adjoining lake front reserved
lot on which Defendants and other off shore property
owners have constructed a dock. Defendants have a
perpetual right of passage for foot passengers.
Plaintiffs seek the removal of the dock, a
declaratory judgment limiting the use of the right of
way to foot passage only without right or privilege to
maintain a dock at the end of the reserved lot.
Defendants claim in their brief that they and other
upland property owners have maintained a dock on the
reserved lot for seventy years, but, there are no sworn
statements to that effect.
Defendants submitted photocopies of portions of
different abstracts of title, but, there are no
affidavits to identify connection to present owners.
Defendants' affidavit in opposition to the order to show
cause consists of a repetition of their answer that does
not contain contentions that were included in
Plaintiffs papers do not specifically connect the
tax map lot numbers to those on the allotment, nor did
they furnish a tax map, deed or other proof indicating
they have any interest in the reserved lot.
Plaintiffs have not established that they have any
interest in the reserved lot and therefore have no
standing on the question of construction and maintenance
of the dock unless the width of it overlapped an
extension of plaintiffs' property lines into the lake.
There is no such allegation.
Plaintiffs do have standing on the question of
storage of the dock on their lands, but, only property
owners who have an interest in the reserved lot for
passage or otherwise, can complain about storage of the
dock on the lot.
Defendants say other property owners should be
joined in the action to effect complete relief. See
CPLR 1001. Not necessarily so. Defendants' rights and
interest must stand on the wording in their deed, and, a
finding for plaintiffs would not be binding on other
property owners whose deeds apparently had different
wording. Having found that on the face of the
pleadings, plaintiffs have not established standing,
there is no need to pull all the property owners into
this litigation at this time.
The motion of plaintiffs to direct the removal of
the dock is denied, without prejudice; defendants'
crossmotion to dismiss the order to show cause is
granted; defendants' motion for sanctions is denied,
without prejudice; no costs to either party on any
motions to date.
THIS IS THE DECISION AND ORDER OF THIS COURT. NO
FURTHER ORDER SHALL BE NECESSARY.
Dated: January , 1996
Mayville, New York
Supreme Court Justice
To all Counsel:
Please take notice that a DECISION and ORDER of
which the within is a copy, is duly granted in the above
entitled action on the day of , 1996, and
duly entered in the office of the Clerk of the County of
Chautauqua on the same date.