Frank v. Garrison

184 A.D.2d 852, 584 N.Y.S.2d 217, 1992 N.Y. App. Div. LEXIS 7839

Opinion

Weiss, P. J.

Appeal from an order of the Supreme Court (Brown, J.), entered May 24, 1991 in Saratoga County, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action.

Plaintiffs are rural upstream owners of a 27-acre tract of land on the west side of Peaceable Street in the Town of Galway, Saratoga County, and defendants own a large parcel downstream on the east side of Peaceable Street. Morning Kill Creek flows through plaintiffs’ land and then under Peaceable Street and across defendants’ land. Beavers have set up housekeeping on defendants’ land and constructed a dam which caused Morning Kill Creek to back up, flooding some of plaintiffs’ land and damaging a dug well.

Plaintiffs commenced this action to compel defendants to remove the beavers from their property and for compensation for the damage caused to their land as a result of the flooding. Plaintiffs’ application for a preliminary injunction was denied and defendants’ cross motion for summary judgment dismissing the complaint for failure to state a cause of action was granted.

* Plaintiffs have appealed.

The complaint alleges that defendants "intentionally suffered and permitted” the beavers to remain on their land. In their affidavit in support of their motion, defendants state that they in no way sought, encouraged or invited the presence of the beavers. Owners of rural land have no affirmative duty to remedy conditions of a purely natural origin upon their property, in this instance the work of wildlife, even though such conditions may cause inconvenience or even damage to the property of neighbors (Lichtman v Nadler, 74 AD2d 66, 67; see, Vanderwiele v Taylor, 65 NY 341, 346). In short, plaintiifs have not presented a cognizable cause of action and, accordingly, summary judgment dismissing the complaint was properly granted.

Yesawich Jr., Crew III, Casey and Harvey, JJ., concur. Ordered that the order is affirmed, with costs.

Defendants gave plaintiffs permission, at their own expense, to enter upon defendants’ lands to trap and remove the beavers and/or to install a beaver drain tube and/or remove the dam, conditioned upon indemnification against damages to others caused thereby. This was reduced to a consent order dated December 3, 1990. When this and defendants’ voluntary attempts to trap the beavers and drain the dammed area proved unsatisfactory to plaintiffs, defendants’ motion was decided.