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Evans v. Johnstown, City of

Citation: 9 ELR 20060
No. No. 60835, 410 N.Y.S.2d 199, (N.Y. Sup. Ct., 10/11/1978) Motion to dismiss granted in part, denied in part

Motion to dismiss three counts of complaint by nearby landowners seeking equitable relief and monetary damages from construction and operation of municipal sewage treatment plant is denied in part and granted in part. Inverse condemnation, which forms the basis of the fourth cause of action asserted, is not limited, as defendants argues, to situations in which the complainant's property has been physically entered but also allows recovery where there has been an interference with the owner's legal use or enjoyment of the property. As this is the nature of plaintiffs' allegations, the court allows count four to stand. The motion to dismiss to count five, which is based on unjust enrichment, is granted except with respect to plaintiffs' claim that defendants have been enriched by dumping refuse on plaintiffs' land without paying compensation. Defendants' motion to dismiss count seven, alleging breach of the public trust concerning the air and water resources of the area, is granted. As historically applied, the public trust doctrine is inapposite because it concerns only interests in bodies of water. Plaintiffs urged extension of the doctrine to fit the case at bar, but because they have not alleged that defendants' actions are not reasonably justifiable, the court rejects the alternative theories and grants the motion.

Counsel for Plaintiffs
Robert J. Kafin
115 Maple St., Glens Falls NY 12801
(518) 793-6631

Counsel for Defendants
Bond, Schoeneck & King
One Lincoln Center, Syracuse NY 13202
(315) 422-0121

Chief Judge Wright did not participate in the decision.