Questioning whether a much-quoted literary aphorism can make good law, a state appellate panel has concluded that a property owner and developer cannot use a fence to block his neighbors’ access to the beachfront they have prized for decades.

“The speaker in Robert Frost’s metaphorical poem ‘Mending Walls’ ruminates over his neighbor’s stolid assumption that ‘good fences make good neighbors,’” Justice Dianne T. Renwick (See Profile) observed Tuesday for a unanimous panel of the Appellate Division, First Department, in Gilliland v. Acquafredda Enterprises, 5800.

“Nonetheless the adage’s message has been sanctioned by tradition. However wise Frost’s thoughts on neighbor relations might be, the practicality of the aphorism remains an open question today, as highlighted by the facts over this case involving a contentious dispute among ‘neighbors’ over a fence,” Justice Renwick wrote in a ruling that upholds a preliminary injunction.

The litigants are the owners of property on Casler Place in the Schuylerville section of the Bronx, part of the Throgs Neck peninsula. Susan and Thomas Acquafredda own property on both sides of the street on the eastern end of Casler Place, fronting Long Island Sound.

In 2008, the couple built a fence at the end of the road and reconstructed a seawall to protect beachfront dwellings they had constructed a few years before. A half-dozen neighbors complained that the project prevented them from entering the beach that they had routinely used until then for swimming, boating and fishing.

Casler Place and the fence

According to the New York Post, the Acquafreddas argued that the land belonged to them and that they had always maintained a chain-link fence on the property.

Their neighbors responded with a lawsuit in which they complained that an easement had allowed them to pass through a gate in the fence, which the Aquafreddos had now locked.

One resident said that she had used the beach since 1935 and offered photographs of herself frolicking there in the 1940s and 1950s. Others said they had been using the access to the beach at the end of the road for 10 to 20 years.

Furthermore, they accused the Aquafreddas of using the fence and seawall to seize property they did not really own.

Last year, Supreme Court Justice Edgar Walker (See Profile) issued a preliminary injunction halting construction and ordering the Acquafreddas not to block access to the beach.

Ruling that the plaintiffs were likely to prevail in the lawsuit, the First Department upheld the preliminary injunction.

Casler Place and the fence

The panel noted that the properties, among many others, once had been part of a single large tract owned by a real estate venture, Locust Point Estate Inc. On Jan. 18, 1928, Locust Point recorded a declaration creating easements for six private streets, including Casler Place. In 1986, the city accepted dedication of Casler Place as a public street.

The Acquafreddas argued that the 1928 easements had been solely intended for access to a public highway. But the First Department rejected that “narrow” view.

First, Justice Renwick said the evidence “casts serious doubt” on the Acquafreddas’ claim of title to the disputed area leading to the shoreline. But whatever the determination on that issue, she said that the “certain and unambiguous” language of the express 1928 easement supported the position of the plaintiffs.

Moreover, the judge concluded that the plaintiffs also had demonstrated that they possessed an “easement by prescription” over their accustomed route to the beach by virtue of their use.

“Here, plaintiffs’ affidavits…established that plaintiffs and their predecessors in interest had openly and notoriously used the area where defendants’ fence now stands for access to the shore since at least 1935,” Justice Renwick wrote.

Thus, the judge concluded, “As was the speaker in ‘Mending Wall,’ we are asked to walk the wall and examine the legal merits of plaintiffs’ claim that defendants’ wall exceeds the boundaries between unneighborly and illegal conduct,” she said. “We are indeed convinced, within the context of a preliminary injunction, that plaintiffs have demonstrated a likelihood of success on the merits in their cause of action. ‘Something there is that doesn’t love a wall.’ It is called an easement.”

Justices Peter Tom (See Profile), Richard T. Andrias (See Profile), James M. Catterson (See Profile) and Rolando T. Acosta (See Profile) joined the ruling. Oral arguments were held on Sept. 29.

Eric M. Baum of Simon, Eisenberg & Baum in Manhattan represented the plaintiffs. He said he would move to make the injunction permanent. Also, he said that the Acquafreddas had been obstructing access, and he planned to seek a contempt order.

The Acquafreddas are represented by Simon H. Rothkrug of Rothkrug Rothkrug & Spector in Great Neck. He was unavailable for comment.