Issues In Establishing An Easement Over Real Property

Law school real property textbooks abound with cases addressing adverse possession, right-of-way disputes and various types of easements (prescriptive, of necessity, and otherwise). Contemporary decisions still address those usual generic, threshold issues, but also the more granule issues of the location, size and permitted uses of easements, rights of way. Several recent examples follow.

DiDonato v. Dyckman, 2018 NY Slip Op 08113, App. Div. 2nd Dept. (November 28, 2018)

Supreme Court denied plaintiff's motion for summary judgment on the amended complaint and granted defendants' cross-motion for summary judgment declaring that the plaintiff was not entitled to an expansion of an easement.

Appellate Division summarized the facts:

The plaintiff and the defendants own abutting lots located in Mahopac. The plaintiff's property benefits from an easement by grant dated April 1, 1964, which is a right-of-way along a private, 12-foot-wide surfaced road located on the defendants' property, for ingress and egress between the plaintiff's property and Highland Road. The plaintiff commenced this action seeking, inter alia, a judgment declaring that she had the exclusive right of ingress and egress over the easement.

The prior proceedings:

In September 2015, the plaintiff moved for summary judgment on the amended complaint, arguing, in effect, that the language of the express easement should be amended to include certain curves in the right of way that were necessary to permit utility and delivery trucks to access the plaintiff's property. The plaintiff argued that she had obtained a prescriptive easement over the portions of the defendants' property which underlaid the proposed curves. The defendants cross-moved for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement, by prescription or otherwise. In an order dated April 7, 2016, the Supreme Court denied the plaintiff's motion and granted the defendants' cross motion. The plaintiff appeals from both the order dated July 30, 2015, and the order dated April 7, 2016.

The legal template:

"Easements by express grant are construed to give effect to the parties' intent, as manifested by the language of the grant"..."The extent of an easement claimed under a grant is generally limited by the language of the grant, as a grantor may create an extensive or a limited easement"..."Where, as here, an easement provides for the ingress and egress of motor vehicles, it is granted in general terms and the extent of its use includes any reasonable use necessary and convenient for the purpose for which it is created'"[.]

"An easement by prescription may be demonstrated by clear and convincing proof of the adverse, open and notorious, continuous, and uninterrupted use of the subject property for the prescriptive period"[.]

Concluding that:

Here, the plaintiff failed to establish, prima facie, that she was entitled to an amendment of the language of the express easement, or that she had a prescriptive easement over a portion of the defendants' property. Accordingly, we agree with the Supreme Court's denial of the plaintiff's motion for summary judgment, regardless of the sufficiency of the defendants' opposition papers[.]

However, the Supreme Court should have denied the defendants' cross motion for summary judgment declaring that the plaintiff was not entitled to an expansion of the easement. The defendants failed to make a prima facie showing of entitlement to judgment as a matter of law by conclusively negating any one of the elements of an easement by prescription which, if proven at trial, would warrant the recognition of an easement by prescription over the relevant portions of the defendants' property[.]

Rosenzweig v. Howlan, 2018 NY Slip Op 07394, App. Div. 3rd Dept. (November 1, 2018)

Supreme Court found that plaintiffs were entitled to a prescriptive easement to use an entire right of way.

The Appellate Division summarized the facts:

In 1966, plaintiffs' parents purchased property on Lampman Road in the Town of Broadalbin, Fulton County. In 1995, plaintiff Martin A. Rosenzweig became the owner of a parcel of that property on which he had been residing with his mother. His sister, plaintiff Lois J. Rosenzweig, returned to the area in 1990 and obtained ownership of a parcel of property from her mother in 1996. Between the parcel owned by Martin Rosenzweig and the parcel owned by Lois Rosenzweig is an approximately 30-foot-wide strip of land (hereinafter the right-of-way) owned by defendant. The right-of-way contains a crushed stone driveway extending 100 feet from, and perpendicular to, Lampman Road, then another 200 to 250 feet of grassy area, before connecting to a 33-acre wooded parcel owned by defendant. Plaintiffs used the driveway to access their homes and a garage, and parked adjacent to it.

The pleadings and prior proceedings:

In 2013, after defendant attempted to prevent plaintiffs from using the right-of-way, Martin Rosenzweig commenced this action pursuant to RPAPL article 15 seeking, among other things, a declaration that he possessed title to the right-of-way by adverse possession. He later filed an amended complaint that added his sister as a plaintiff and sought a declaration that they are fee owners of the right-of-way or, alternatively, a declaration that they have a prescriptive easement over the right-of-way. After plaintiffs rested their case at the end of the first day of a bench trial, they moved for a directed verdict or, in the alternative, to amend the pleadings to conform to the proof regarding a prescriptive easement. Supreme Court reserved decision, but eventually granted the motion to amend. After defendant presented his evidence and the parties submitted closing arguments, the court, among other things, granted plaintiffs a prescriptive easement over the crushed stone driveway and the entire right-of-way[.]

The legal template:

Supreme Court did not err in granting plaintiffs a prescriptive easement over the right-of-way. "A party claiming a prescriptive easement must show, by clear and convincing evidence, that the use of the easement was open, notorious, hostile and continuous for a period of 10 years"...Once the other elements are established, "hostility is generally presumed, thus shifting the burden to the defendant to demonstrate that the use was permissive"..."However, permission can be inferred when the relationship between the parties is one of neighborly cooperation and accommodation, in which case no presumption of hostility will arise"[.]

The testimony in the Court below:

Testimony from plaintiffs, a neighbor, defendant and defendant's predecessor-in-interest established that plaintiffs used the crushed stone driveway to gain access to their property daily for more than 20 years. All witnesses were aware that Martin Rosenzweig plowed the driveway in the winter. Plaintiffs testified that one or both of them maintained the right-of-way by adding rubble and crushed stone to the driveway when needed (approximately 10 times over the years), planting flowers along the driveway, rolling the area beside the driveway to level it, weed-whacking and mowing the entire right-of-way. Martin Rosenzweig testified that he installed a mailbox just inside the right-of-way 15 years earlier and erected a basketball hoop and light pole within the right-of-way many years earlier. Both plaintiffs testified that they never asked anyone for permission to use or improve the right-of-way, and they used it without incident until 2013.

Defendant testified that, when he first bought his property in 1995, he gave plaintiffs permission to use the right-of-way. He acknowledged that, in 2013, he sent Martin Rosenzweig a letter in which he recited that, in 1997, his attorney had sent Martin Rosenzweig a certified letter telling him to keep off defendant's property, and that Martin Rosenzweig had signed for that letter. No such 1997 letter was admitted into evidence, and defendant questioned whether his attorney had actually written or sent one. Defendant stated that he wanted plaintiffs to keep off his property in 1997, but he then gave them permission to use it again until 2013. When questioned about how he expressed his renewed permission, defendant responded that it was given by him not doing anything to keep plaintiffs off his property. Defendant also testified that he had almost no interaction with plaintiffs. After an incident in 2013 in which Martin Rosenzweig was allegedly on defendant's property beyond the right-of-way without permission, defendant called the police on him several times per week for months.

Concluding that:

The evidence established that plaintiffs used and maintained the right-of-way openly and notoriously for a period well in excess of 10 years. That use extended beyond the driveway to the entire right-of-way. Inasmuch as the evidence demonstrated a lack of neighborly accommodation between the parties, the element of hostility can be presumed...Supreme Court, after finding that defendant's credibility was called into question by inconstancies in his testimony and a felony conviction for insurance fraud, reasonably concluded that defendant did not give permission for plaintiffs to use the right-of-way, at least between 1997 and 2013. Thus, defendant failed to meet his burden to rebut the presumption of hostility. Accordingly, plaintiffs proved by clear and convincing evidence that they were entitled to a prescriptive easement to use the entire right-of-way[.]

Kuzmicki v. Bentley Yacht Club, 2018 NY Slip Op 51574(U), Sup. Ct. Richmond Co. (November 9, 2018)

Plaintiff brought an action against defendants for trespass and for an order permanently enjoining defendants from trespassing upon her property.

The Court described the pending motion:

The plaintiff, Kuzmicki, now moves by Order To Show Cause to temporarily and/or preliminarily restrain defendants, Kevin Hartnett, Casey Robisky, Edward...