Summary
holding that if a use begins as permissive, its character as such "`will continue of the same nature, and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner, and brought home to him'"
Summary of this case from BOARD OF MGRS., SOHO INTL. ARTS CONDO. v. CITY OF NEW YORKOpinion
December 7, 1961
Appeal from the Monroe Equity Term.
Present — Williams, P.J., Bastow, Goldman, Halpern and McClusky, JJ.
Judgment unanimously reversed on the law and facts, with costs, and judgment directed in favor of the plaintiff, with costs. Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Memorandum: The finding by the trial court that the use of the lane across the plaintiff's property by the defendants was adverse was not supported by the evidence. The evidence established that the user had originated in permission given by the plaintiff's predecessor in title to the defendants' predecessor in title. "If permissive in its inception, such permissive character will continue of the same nature, and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner, and brought home to him" ( Moore v. Day, 199 App. Div. 76, 86, affd. 235 N.Y. 554; see generally, 2 N.Y. Jur., Adverse Possession, § 12). There is no proof in this case that the user, originally permissive, later became hostile by virtue of any "distinct and positive assertion". The conclusion of the trial court that the defendants had acquired a right of way by prescription must accordingly be reversed. The plaintiff is entitled to an injunction against the defendants' use of the lane.