Cirillo v. Wyker

In an action inter alia to recover damages for trespass, plaintiff appeals from a judgment of the Supreme Court, Westchester County, dated November 25, 1975, in her favor, after a nonjury trial, on the grounds that (1) the monetary award against defendants Wyker was inadequate, (2) she was not awarded judgment against defendant Harrison Excavating Corp. and (3) no injunctive relief was granted. Judgment affirmed, without costs or disbursements. The plaintiff failed to prove that she owned the 170-foot line lying under Woodlands Road. That portion of the sewer line is a fixture (see Matter of County of Nassau [Lido Beach Sewage Collection Dist] 40 Misc 2d 384) which belongs to the owner of the bed of Woodlands Road. The record does not show whether the town or the abutting landowners own the bed of the portion of the road in question, but it does show that plaintiffs land is removed from, and does not abut, Woodlands Road. This means that, as a matter of law, the plaintiff does not own the 170-foot portion of the sewer line lying under Woodlands Road; consequently, the defendants Wyker violated none of her rights when they connected their sewer line to the manhole in the town road. Under the circumstances, if the defendants Wyker had cross-appealed, we would have reversed the judgment and dismissed the complaint. In the absence of such a cross appeal, we affirm. Hopkins, Acting P. J., Martuscello, Cohalan, Rabin and Shapiro, JJ., concur.