STATE OF NEW YORK:

SUPREME COURT COUNTY OF CHAUTAUQUA

_______________________________________

NORMAN G. SEAGREN,

HARRY E. SARVIS

ELLEN SARVIS,

Plaintiffs, INDEX NO. H-11,861

vs

RICHARD E. ECKLUND

VIRGINIA A. ECKLUND,

Defendants.

______________________________________

SPOTO & SLATER

(Kevin J. Sirwatka, Esq.

of Counsel) for Plaintiffs

JAMES E. WESTMAN

Attorney for Defendants

DECISION and ORDER

GERACE, J.

Defendant moves to settle the order based on the

August 21, 1995 Decision announced from the bench by

this Court. A review of the facts and written recital

of the Decision of this Court should clear the air.

Plaintiffs own property on the shore of Chautauqua

Lake on both sides of an adjoining lake front reserved

lot on which Defendants and other off shore property

owners have constructed a dock. Defendants have a

perpetual right of passage for foot passengers.

Plaintiffs seek the removal of the dock, a

declaratory judgment limiting the use of the right of

way to foot passage only without right or privilege to

maintain a dock at the end of the reserved lot.

Defendants claim in their brief that they and other

upland property owners have maintained a dock on the

reserved lot for seventy years, but, there are no sworn

statements to that effect.

Defendants submitted photocopies of portions of

different abstracts of title, but, there are no

affidavits to identify connection to present owners.

Defendants' affidavit in opposition to the order to show

cause consists of a repetition of their answer that does

not contain contentions that were included in

defendants' brief.

Plaintiffs papers do not specifically connect the

tax map lot numbers to those on the allotment, nor did

they furnish a tax map, deed or other proof indicating

they have any interest in the reserved lot.

Plaintiffs have not established that they have any

interest in the reserved lot and therefore have no

standing on the question of construction and maintenance

of the dock unless the width of it overlapped an

extension of plaintiffs' property lines into the lake.

There is no such allegation.

Plaintiffs do have standing on the question of

storage of the dock on their lands, but, only property

owners who have an interest in the reserved lot for

passage or otherwise, can complain about storage of the

dock on the lot.

Defendants say other property owners should be

joined in the action to effect complete relief. See

CPLR 1001. Not necessarily so. Defendants' rights and

interest must stand on the wording in their deed, and, a

finding for plaintiffs would not be binding on other

property owners whose deeds apparently had different

wording. Having found that on the face of the

pleadings, plaintiffs have not established standing,

there is no need to pull all the property owners into

this litigation at this time.

The motion of plaintiffs to direct the removal of

the dock is denied, without prejudice; defendants'

crossmotion to dismiss the order to show cause is

granted; defendants' motion for sanctions is denied,

without prejudice; no costs to either party on any

motions to date.

THIS IS THE DECISION AND ORDER OF THIS COURT. NO

FURTHER ORDER SHALL BE NECESSARY.

Dated: January , 1996

Mayville, New York

_________________________

JOSEPH GERACE

Supreme Court Justice

To all Counsel:

Please take notice that a DECISION and ORDER of

which the within is a copy, is duly granted in the above

entitled action on the day of , 1996, and

duly entered in the office of the Clerk of the County of

Chautauqua on the same date.