Dias v. Town of Ulster: Prescriptive Drainage Easements Require a Reasonably Specific Flow Path; Public-Safety Equities Can Defeat Injunctive Relief

1. Introduction

Case: Dias v Town of Ulster, 2025 NY Slip Op 04127 (3d Dept July 10, 2025).
Parties: Joao Dias (plaintiff/respondent) vs. Town of Ulster (defendant/appellant).
Dispute: The Town installed (in or before 1986) a stormwater drainage pipe discharging onto a Kingston property later purchased by Dias (around 2004). Around 2007, the Town extended the pipe onto Dias’s property. Dias observed frequent discharge, spreading, and pooling. In 2021, Dias paid to build a swale along the western border to reduce ponding.

Claims: Trespass, nuisance, and inverse condemnation, seeking money damages and a permanent injunction barring further stormwater discharge.
Defense: The Town asserted it had acquired a prescriptive easement to drain water across the property.

Procedural posture: After motion practice, Supreme Court limited trial to whether the Town had a prescriptive easement and, if not, damages/remedies. After a bench trial, Supreme Court found no prescriptive easement, awarded swale costs, and issued a permanent injunction. The Town appealed. The Third Department affirmed in part, reversed the injunction, and remitted for an inquest on damages.

2. Summary of the Opinion

  • No prescriptive easement established: Although drainage easements can be acquired by prescription, the Town failed to prove—by clear and convincing evidence—the scope of the claimed drainage route “over and across” the property. The evidence showed no “definite and certain way” or reasonably specific historical flow path across Dias’s land.
  • Repair costs affirmed: The award to Dias for the cost of constructing the swale was supported by sufficiently specific testimony.
  • Permanent injunction reversed: The balance of equities did not favor enjoining the discharge because testimony showed removal could cause intersection flooding/icing hazards implicating public health and safety. Further, the record suggested there may be an adequate remedy at law (a permanent diversion solution), though cost was not developed.
  • Remittal for damages: The case was remitted for an inquest to determine damages measured by the lesser of (i) diminution in property value due to drainage or (ii) the cost to construct a permanent solution preventing future injury.

3. Analysis

3.1 Precedents Cited

The court’s reasoning is built from two doctrinal pillars: (1) the elements and scope of prescriptive easements (especially in drainage contexts), and (2) equitable limits on permanent injunctions (especially where public safety is implicated).

A. Standard of review of nonjury verdict

  • Mastbeth v Shiel, 218 AD3d 987 (3d Dept 2023) and Kallman v Krupnick, 67 AD3d 1093 (3d Dept 2009), lv denied 14 NY3d 703 (2010): The Third Department reiterated its approach to nonjury verdicts—independent review of probative weight and inferences while deferring to credibility and factual findings. This framing mattered because the prescriptive easement issue turned heavily on trial testimony about historical flow characteristics.

B. Elements of a prescriptive easement; clear and convincing evidence

  • Bekkering v Christiana, 231 AD3d 1444 (3d Dept 2024) and Burpoe v McCormick, 190 AD3d 1070 (3d Dept 2021): These cases supplied the elements—open, notorious, hostile, and continuous use for 10 years—proved by clear and convincing evidence; once other elements are shown, hostility is generally presumed. The Town’s problem was not merely “hostility,” but proving the scope of what it claimed to have used.

C. Drainage easements can be prescriptive—onto or across

  • Bono v Town of Humphrey, 188 AD3d 1744 (4th Dept 2020); Zutt v State of New York, 50 AD3d 1133 (2d Dept 2008); Torre v Meade, 226 AD2d 447 (2d Dept 1996), lv denied 88 NY2d 813 (1996); Town of Hamburg v Gervasi, 269 App Div 393 (4th Dept 1945): Cited to confirm that drainage by prescription is a recognized category (whether discharging “onto” or draining “across” another’s land).
  • Vinciguerra v State of New York, 262 AD2d 743 (3d Dept 1999) and Village of Schoharie v Coons, 34 AD2d 701 (3d Dept 1970), affd 28 NY2d 568 (1971): Cited comparatively, reinforcing that water/drainage situations may turn on the nature and proof of the claimed right.

D. The crucial limitation: scope of a prescriptive easement is measured by the historical use

  • Auswin Realty Corp. v Klondike Ventures, Inc., 163 AD3d 1107 (3d Dept 2018); Taylor v State of New York, 302 NY 177 (1951); Prentice v Geiger, 74 NY 341 (1878); Mandia v King Lbr. & Plywood Co., 179 AD2d 150 (2d Dept 1992): These authorities supply the foundational maxim that a prescriptive easement’s extent is measured by the extent of the actual, adverse use during the prescriptive period—“[t]he extent of the enjoyment measures the extent of the right” (Prentice v Geiger). The Third Department used this principle to reject the Town’s attempt to prove a generalized right to discharge water without proving the boundaries/route of the claimed “across” drainage easement.
  • Daniello v Wagner, 221 AD3d 956 (2d Dept 2023) and Reiss v Maynard, 170 AD2d 992 (4th Dept 1991), lv dismissed 78 NY2d 908 (1991): Reinforced that the prescriptive right is confined to the right “as exercised” for the prescriptive period.
  • Woehrel v State of New York, 178 AD3d 1169 (3d Dept 2019): Specifically cited for the proposition that the proponent must establish the easement’s scope—supporting the court’s insistence on determinacy/boundaries.

E. “Definite and certain way” requirement in drainage-across cases

  • Zaluski v McCormick, 49 AD2d 982 (3d Dept 1975): The decision’s keystone for rejecting the Town’s proof. The court held Supreme Court properly found the Town failed to demonstrate use of a “definite and certain way” to discharge water over the land for the prescriptive period.
  • Patel v Garden Homes Mgt. Corp., 156 AD3d 807 (2d Dept 2017) and Zutt v State of New York, 50 AD3d 1133: Used to confirm that determinacy/scope principles apply even where the claimed easement concerns surface water drainage.
  • Dutcher v Town of Shandaken, 23 AD3d 781 (3d Dept 2005): Cited in contrast (“cf.”) to illustrate that where evidence supports a defined course or sufficient specificity, outcomes may differ.

F. Damages proof for repairs

  • WFE Ventures, Inc. v GBD Lake Placid, LLC, 197 AD3d 824 (3d Dept 2021) and Warm v State of New York, 308 AD2d 534 (2d Dept 2003), lv denied 2 NY3d 703 (2004): Supported the proposition that sufficiently specific testimony can justify an award for repair/remediation costs.
  • Mastbeth v Shiel, 218 AD3d 987 and Matter of Behar v Friedman, 180 AD3d 671 (2d Dept 2020): Cited comparatively on adequacy of proof; the Third Department found Dias’s testimony met the necessary specificity here.

G. Standards for permanent injunction; balancing equities; adequate remedy at law

  • Huang v Fort Greene Partnership Homes Condominium, 228 AD3d 912 (2d Dept 2024); Malinski v State of New York, 238 AD3d 1307 (3d Dept 2025); New York State Elec. & Gas Corp. v County of Chemung, 137 AD3d 1550 (3d Dept 2016), lv dismissed 28 NY3d 1044 (2016): Provided the elements for permanent injunctive relief—ongoing/threatened violation, no adequate remedy at law, serious and irreparable harm, and equities in plaintiff’s favor.
  • McDermott v City of Albany, 309 AD2d 1004 (3d Dept 2003), lv denied 1 NY3d 509 (2004): Central to the equities analysis. The court relied on public health/safety concerns (flooding/icing hazards at an intersection) to conclude the balance of equities did not support an injunction.
  • DiMarzo v Fast Trak Structures, 298 AD2d 909 (4th Dept 2002) and Higgins v Village of Orchard Park, 277 AD2d 989 (4th Dept 2000): Cited on the availability of legal remedies and alternatives to injunctions in property/injury contexts.

H. Measure of damages on remittal: lesser-of rule

  • Mastbeth v Shiel, 218 AD3d 987 and McDermott v City of Albany, 309 AD2d 1004: Supported remittal for an inquest where equitable relief is inappropriate and the record is insufficiently developed to fix a permanent-solution figure.
  • Phoenix Ins. Co. v Cohen, 34 AD3d 775 (2d Dept 2006) and Restey v Higgins, 252 AD2d 954 (4th Dept 1998): Cited for the general measure of damages concept applied here: the lesser of diminution in value or cost to repair/abate (here, a permanent solution preventing future injury).

3.2 Legal Reasoning

A. The Town’s “no-specificity-needed” theory was rejected

The Town’s appellate theme was that it did not need to prove the easement’s nature with specificity—only that it had discharged water for the requisite period. The court rejected this as inconsistent with the underlying rationale of prescription: fair notice to the owner of the adverse use and its boundaries. Even the Town’s posttrial submission effectively acknowledged this principle by conceding that determinate boundaries are tied to fair notice.

B. Why the scope mattered in this record: “across” vs. “onto”

The court treated the Town as seeking an easement to drain water “over and across” Dias’s land to the City of Kingston outlet pipe. That mattered because an “across” easement is inherently a route-based right; the court required proof of the extent of that route, consistent with the broader rule that the easement is “measured by the extent of the use.”

C. The missing proof: a reasonably specific historical flow path

The evidence showed discharge from a pipe in the southeast corner, but the Town’s own witnesses undercut the notion of a stable drainage course:

  • The highway superintendent (Petramale) described water creating a visible stream or pond and moving generally around portions of the lot, but conceded he could not recall a continuously defined path and that the flow “wasn’t so defined,” instead following grading.
  • The professional engineer (Larios) similarly testified that water would flow into a low area, likely pond, and eventually make its way to the culvert system—but until the swale was built, there was never a definite or defined area where water flowed across the property.

Against the “definite and certain way” requirement drawn from Zaluski v McCormick and reinforced by Patel v Garden Homes Mgt. Corp. and Zutt v State of New York, the Town failed to prove the scope of the claimed prescriptive right by clear and convincing evidence.

D. Remedies: the court separated past remediation costs from forward-looking equitable relief

The Third Department upheld the swale-cost award because Dias’s testimony adequately described the work and costs. But it reversed the permanent injunction because:

  • Public safety equities: Larios testified that removing the culvert/pipe could cause hazardous flooding and icing at an intersection. Under McDermott v City of Albany, that kind of public welfare risk can outweigh a private property owner’s request for injunctive relief.
  • Adequate remedy at law / feasibility of alternatives: The record suggested a potential permanent diversion to another culvert (northwest portion of the lot). Even if the cost was uncertain, the possibility of an engineering solution supported the conclusion that Dias was not necessarily without a legal (monetary) remedy.

Because Supreme Court granted equitable relief partly due to insufficient proof of permanent-fix costs, the appellate court directed an inquest to quantify damages using a lesser-of framework: diminution in value vs. cost to implement a permanent solution preventing future injury.

3.3 Impact

A. Higher evidentiary discipline for drainage-by-prescription claims framed as “across” easements

The decision reinforces that when a municipality (or any claimant) litigates a drainage prescriptive easement as a right to carry water across private property, it must prove—not assume—the easement’s scope. Practically, this pushes parties toward:

  • historical hydrology evidence showing a stable channel or consistent route;
  • topographic proof (grading, low points) tied to an identifiable corridor;
  • maps/surveys evidencing the customary course during the 10-year period.

B. Injunctions involving stormwater infrastructure will be sensitive to public-safety tradeoffs

Even where a landowner proves trespass/nuisance-type invasion and defeats a prescriptive easement defense, Dias signals that courts may decline to “turn off” drainage infrastructure if doing so risks roadway flooding/icing. That does not immunize the municipality; it shifts the remedy toward damages and engineered alternatives rather than blunt prohibitions.

C. Remedies guidance: damages may be pegged to the lesser of diminution or permanent-fix cost

The remittal instruction provides a structured path for trial courts where an injunction is inequitable but recurring harm is real: quantify a permanent remedy and compare it to property-value loss, awarding the lesser figure. This can discipline proofs and encourage parties to develop concrete engineering cost estimates early.

4. Complex Concepts Simplified

  • Prescriptive easement: A right to use someone else’s land that arises from long-term, adverse use meeting legal criteria (here: open, notorious, hostile, continuous for 10 years, proved by clear and convincing evidence).
  • “Open and notorious”: The use must be visible enough that an owner could discover it with reasonable diligence.
  • “Hostile” (in this context): Not personal animosity—rather, use without permission in a manner inconsistent with the owner’s rights; once other elements are shown, hostility is often presumed.
  • Scope measured by use: A prescriptive easement is not a broad license; it is limited to what was actually done for the prescriptive period (how, where, and to what extent).
  • Definite and certain way / determinate boundaries: For an “across” easement, there must be a sufficiently identifiable route. Diffuse sheet flow or shifting drainage that has no stable corridor may fail this requirement.
  • Permanent injunction: A forward-looking court order stopping conduct. Courts require proof of irreparable harm, lack of adequate legal remedy, and a favorable balance of equities—particularly important where public safety is implicated.
  • Inquest on damages: A follow-up proceeding to determine the amount of damages when liability/entitlement is established but the record does not support a final figure.
  • Lesser-of damages rule: A common property-damage measure awarding the lower of (i) diminished value of the property or (ii) the cost to cure/repair/abate.

5. Conclusion

Dias v Town of Ulster clarifies two consequential points in New York drainage and property-rights litigation: (1) a party claiming a prescriptive drainage easement “across” another’s land must prove the easement’s scope with clear and convincing evidence—including a reasonably specific, historically established flow path—rather than relying on generalized discharge; and (2) even when a landowner prevails on liability and defeats prescription, a permanent injunction may be denied where public health and safety weigh against it and an engineering alternative suggests a compensatory remedy is adequate. The decision therefore tightens proof requirements for prescriptive drainage rights while steering remedies toward carefully measured damages when injunctive relief would create broader hazards.