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Home > Underwriting > Title News > Nineteen Volume One

SERIES: Nineteen VOLUME: One DATED: January, 2004

~ PRESCRIPTIVE DRIVEWAY EASEMENT UPHELD ~

In a recently decided case, Gravelle v. Dunster (Appellate Division, Third Department, decided December 4, 2003) the court reversed a lower court decision which had dismissed a property owner's adverse possession claim of a prescriptive driveway easement over her neighbor's property. The decision of that court is as follows:

"Plaintiff is the owner of a parcel of real property situate on Dayton Hill Road in the Town of Granville, Washington County. Defendants own real property which abuts plaintiff's property to the east. Plaintiff's driveway is located on the eastern side of her property and extends approximately six feet onto defendants' property. She has used the driveway to access her home since 1993 when she acquired the property from Kathleen Bennett. The record further reveals that Bennett had likewise used the driveway for access to Dayton Hill Road, including defendants' six-foot strip of land, since 1988.

Plaintiff commenced this proceeding pursuant to RPAPL article 15 seeking a declaration that she has a prescriptive easement over defendants' six-foot strip of land which comprises a portion of her driveway. Following joinder if issue, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. Supreme Court granted defendants' motion and denied plaintiff's cross motion prompting this appeal from the order and judgment entered thereon.

It is axiomatic that for plaintiff to establish a prescriptive easement, she must demonstrate by clear and convincing evidence that her use of defendants' property was for her benefit and was adverse, open, notorious, continuous and uninterrupted for 10 years . . . Moreover, in order to meet the requirements of the prescriptive period, use by plaintiff's predecessor in title may be considered so long as there is, as here, an unbroken chain of privity between the two . . . Once plaintiff has established the elements of open, notorious, continuous and uninterrupted use for a 10-year period, a presumption arises that such use was hostile, thereby shifting the burden to defendants to demonstrate that such use was permissive. . .

Here, the record makes plain that Bennett, plaintiff's predecessor in title, began use of the six-foot strip of defendants' property sometime in the mid-1980's and, clearly, no later than 1988. Bennett put blacktop on defendants' strip of land, plowed the driveway and used the same to access Dayton Hill Road continuously until she conveyed the property to plaintiff. Plaintiff thereafter continued such use, including plowing of the driveway in the winter and maintaining the same with fill and grading during the summer months. As such, plaintiff has established a continuing open and notorious use of defendants' property for the necessary 10 years, shifting the burden to defendants to demonstrate that her use was permissive. This they have failed to do. Indeed, defendants concede that they never gave permission to either Bennett or plaintiff to use their property and, in fact, served a trespass notice on plaintiff in 2001. Accordingly, plaintiff established her entitlement to a prescriptive easement and should have been granted judgment in that regard . . .

ORDERED that the order and judgment are reversed, on the law, with costs, defendants' motion denied and plaintiff's cross motion granted to the extent that plaintiff is declared to have obtained a prescriptive easement to the use and enjoyment of the six-foot portion of her driveway that encroaches upon the lands owned by defendants and defendants are enjoined from interfering with plaintiff's use and enjoyment of her driveway, including the six-foot portion thereof which encroaches upon the lands owned by defendants."

~ PRESCRIPTIVE DRIVEWAY EASEMENT DENIED ~

In another case before the Appellate Division, Third Department, decided on December 11th, one week after the Gravelle v. Dunster decision above, the same Court, in an action entitled Allen v. Mastrianni, upheld the dismissal of a similar adverse possession claim concerning a prescriptive driveway easement with the following decision:

"The parties to this real property dispute own adjoining properties on the shore of Lake George in the Town of Bolton, Warren County, in an area known as 'Jacobi Point.' Historically, plaintiffs and their predecessors-in-title accessed their property via a deeded right-of-way over defendants' property. In addition, plaintiffs allegedly used a 'rear access way,' also over defendants' property, to reach an otherwise inaccessible portion of their land. After purchasing their parcel in 1997, defendants built a house and installed a septic system that blocked the rear access to plaintiffs' property. Defendants also planted trees and placed a large boulder in a manner that narrowed the deeded right-of-way. Plaintiffs thereafter commenced this action claiming, among other things, prescriptive easements to use the deeded right-of-way at its former width and the 'rear access way.' As is relevant here, defendants moved for partial summary judgment on plaintiffs' prescriptive easement causes of action, contending that plaintiffs' use had been permissive rather than hostile. Supreme Court granted defendants' motion and dismissed those causes of action that were premised upon prescriptive easements. Plaintiffs appeal.

In order to establish a prescriptive easement, a plaintiff must prove, by clear and convincing evidence, that the use of the servient property was open, notorious, continuous, hostile and under a claim of right for the requisite 10-year period. . . Proof that use of a property was open, notorious, continuous and undisputed generally gives rise to a presumption that the use was hostile and under a claim of right, shifting the burden of proof to the servient property owner to show that the use was permissive . . . However, permission can be inferred where, as here, the relationship between the parties is one of neighborly cooperation and accommodation and, in such case, the presumption of hostility does not arise . . . In fact, 'where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right'...

In support of their motion, defendants point to the deposition testimony of plaintiff W. Park Allen, which described a history of cooperation and accommodation among the property owners on Jacobi Point dating back to a common grantor, Abraham Jacobi. Indeed, according to Allen himself, 'it's pretty much been understood throughout all the families [on Jacobi Point] since Dr. Jacobi came in in 1892 that everyone had free range.' Allen also testified that, 'because of the way the thing is laid out, [the neighbors] have to cross each other's land'. Under these circumstances, permission to use defendants' land is implied and, thus, plaintiffs' adverse use could not arise until their hostile claim was made known to defendants or their predecessors-in-title. In the absence of any evidence that plaintiffs' use of defendants' property was hostile and under a claim of right, the prescriptive easement [i.e. the "rear access way" - Editor] causes of action were properly dismissed . . .

ORDERED that the order is affirmed, with costs."


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