Property Rights Foundation of America®

from PRFA's Twelfth Annual National Conference on Private Property Rights
October 18, 2008

Summary Judgement over Survey Maps in Property Encroachment

Edwin Navin
Montreal, Quebec, Canada
Property Owner, Saranac, New York

I'm not really sure if I volunteered. It happened. I phoned Carol about tickets for this conference and this is where I am right now.

My wife and I own property in Saranac, New York. A neighbor by the name of Mosquera built a bridge across our property, which encroached on our property. We had a bridge across a brook and the bridge encroached on our property. We had our property surveyed and the survey showed that, as expected, Mosquera had built part of their bridge on our property.

Based on the presumed accuracy of the survey, we filed an encroachment complaint in the Clinton County Supreme Court. In their answer to our complaint, Mosquera denied their new bridge encroached on our property, because they allegedly had two rights-of-way and the bridge was built within the bounds of these rights-of-way. So that was their excuse. They also filed a counterclaim against us asking for declaratory judgment, injunctive relief from the court defining the locations of these rights-of-way.

In response to their discovery demands, we provided Mosquera with a preliminary copy of a survey map. We then provided them with a final stamped and signed copy of the same map, which was later filed in the court record.

Both of our maps clearly showed that our property was only servient to one right-of-way. Mosquera then retained the services of a surveyor. Their surveyor produced a map showing that our property was servient to two rights-of-way, notwithstanding the fact that both maps referenced the same two deeds and the same two survey maps.

After we got some bad advice from our attorneys, we terminated their services and moved ahead pro se and we moved the trial forward to a scheduled two-day bench trial. Mosquera pre-empted this trial with a motion for summary judgment, notwithstanding the material differences between our map and their map, which were evident, visual, and clear. They supported their motion with an affidavit by their surveyor who made false allegations of fact about our map.

For the reasons articulated in the Supreme Court decision, copies of which I have circulated, along with the Appellate Court decisions, the Supreme Court ruled in favor of Mosquera.

We filed a motion to the Court to reconsider its decision, which was supported by an affidavit made by our surveyor, refuting the false allegations of fact made by the Mosquera surveyor. This motion was denied and, according to my recollection, the Court didn't provide us with any reasons.

From its summary judgment decision, the Court reserved a decision on the issue of our alleged frivolous conduct pending the completion of the preliminary trial, the purpose of which I believe was to separate their summary judgment decision from this particular trial and to impose the law of the case coming from their decision on this particular phase of the litigation.

After the preliminary hearing, the Supreme Court once again ruled in favor of Mosquera and awarded them costs for attorney fees and other expenses totaling about $10,000, because our conduct was frivolous, which under law is a lawsuit brought without merit, having no legal basis and often brought simply to harass a party. The Supreme Court judge made a reference to me as a bully and keeping me at bay.

Whether or not he succeeded, I really don't know, we'll find out. After entry of this decision, we filed an undertaking to delay its execution pending decisions on appeal from the Appellate Court. On our first appeal, the Appellate Court affirmed the Supreme Court summary judgment decision and found that our appeal lacked merit, but sanctions against us were not warranted because our litigation against Mosquera was not wholly frivolous, for reasons articulated in its decision on our second appeal, in the sense that their answer and counterclaim was inextricably intertwined with our complaint.

And on the second appeal, the Appellate Court found the Mosquera request for declaratory relief on their counterclaim was for the reason I just cited, and they ruled that monetary sanctions against us were inappropriate.

Our survey map is now recorded in the Clinton County Clerk's office, and clearly shows that our property is only servient to one right-of-way. The Mosquera survey map is also now recorded in the Clinton County Clerk's office, and also clearly shows two rights-of-way across our property. These differences were brought to the Court's attention after the fact. Nothing was done and they clearly manifest material differences that should not have been used as a basis for making a summary judgment decision.

And essentially it's now sort of legal record. The Navin v. Mosquera decision is now well established in case law as exemplified by the seventeen decisions I gave you copies of, along with three decisions citing Navin v. Mosquera. And my opinion whether or not this matter should have that distinction is, to say the least, moot. So if anybody wants copies of the decisions citing Navin v. Mosquera, I have them, just ask for them. Thank you very much.

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