Opinion
February 4, 1999
Appeal from the Supreme Court (Fromer, J.H.O.).
Plaintiff and defendants own adjoining properties fronting. Harder Road and located predominantly in the Town of Claverack Columbia County. The properties have been owned by family members since 1907 and utilized primarily for farming purposes. In 1974, plaintiff obtained a triangular-shaped parcel of property (hereinafter parcel A) as a gift from her father upon which she built her residence. In 1990, plaintiff's father conveyed to her an additional 41 acres behind her home (hereinafter parcel B) comprise, d primarily of pasture land. In 1987, defendants obtained title to their property (hereinafter parcel C), which is contiguous to parcel B, from Elma Shutts.
Defendant Donald W. Shutts, Sr. died during the pendency of the action leaving defendant Helen Shutts as the surviving tenant by the entirety and sole remaining defendant.
The dispute herein concerns the use of a certain right-of-way leading from Harder Road across parcel C to parcel B. In 1994, defendants apparently blocked plaintiff's access to the right-of-way. As a result, plaintiff commenced this action claiming a prescriptive easement. Following a trial, Supreme Court found that plaintiff did not sustain her burden of proof. This appeal ensued.
We affirm. It is well settled that "[i]n order to establish a claim for a prescriptive easement * * * plaintiffs must demonstrate by clear and convincing evidence that their use of the path on defendants' property was for the benefit of their real property and was adverse, open and notorious, continuous and uninterrupted for the prescriptive period" ( Bova v. Vinciguerra, 184 A.D.2d 934; see, Wechsler v. New York State Dept. of Envtl. Conservation, 193 A.D.2d 856, 859, lv denied 82 N.Y.2d 656; Epstein v. Rose, 101 A.D.2d 646, 647, lv denied 64 N.Y.2d 611). Generally, proof of open, notorious, continuous and undisputed use gives rise to a presumption that the use was hostile, thereby shifting the burden to the servient landowner to demonstrate that the use was permissive ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 859-860; City of Tonawanda v. Ellicott Creek Homeowners Assn., 86 A.D.2d 118, 121, appeal dismissed 58 N.Y.2d 824; Beutler v. Maynard, 80 A.D.2d 982, 983, affd 56 N.Y.2d 538). This presumption, however, is not applicable where the user and servient landowner are related by blood ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 860; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876) or where their relationship "was one of cooperation and neighborly accomodation" ( Susquchanna Realty Corp. v. Barth, 108 A.D.2d 909, 910). In such case, the user must come forward with affirmative facts to establish that the use was under a claim of right and adverse to the interests of the landowner ( see, Wechsler v. New York State Dept. of Envtl. Conservation, supra, at 860; Susquchanna Realty Corp. v. Barth, supra, at 910).
In the case at hand, undisputed testimony was presented establishing that plaintiff's father, Charles Harder, used the subject right-of-way over a period of years dating back to at least the early 1960s for the purpose of gaining access to parcel B to harvest crops. Plaintiff's uncle, Clarence Harder, testified that the use of the right-of-way dated back to the mid-1920s at which time plaintiff's and defendants' properties were owned by his father, Harmon Harder, and his grandfather, John Harder, respectively. Clarence Harder further stated that there was never any dispute between his father and grandfather over the use of the right-of-way and that the relationship between the two was good. He further stated that upon John Harder's death parcel C was left to his grandson, Willis Shutts, who was Donald Shutts' father. Clarence Harder added that he was not aware of any dispute between Harmon Harder and Willis Shutts over the use of the right-of-way.
Plaintiff and her husband testified that, after plaintiff's father stopped using parcel B for farming, they continued to use the right-of-way to gain access to parcel B for hunting, fishing and other recreational purposes. They stated that there was a metal gate across the right-of-way to contain cattle, but it was not locked nor were they ever prevented from using the right-of-way until defendants padlocked the gate in 1994.
In a deposition given prior to his death, Donald Shutts confirmed that, after Charles Harder's death, plaintiff and her husband continued to use the right-of-way. He stated that other people also used it to gain access to parcel B for fishing. Helen Shutts testified that the Harders and Shutts were related by blood with John Harder being Donald Shutts' great-grandfather and Harmon Harder being plaintiff's grandfather. She stated that her husband used to assist plaintiff's father in harvesting crops from parcel B by use of the right-of-way. Helen Shutts further stated that, in the early 1990s, plaintiff and, her husband offered to purchase the strip of land encompassing the right-of-way. She testified that her family rejected the offer and, after witnessing plaintiff's husband operate an all-terrain vehicle over the right-of-way, decided to padlock the gate.
This evidence clearly establishes that plaintiff's use of the subject right-of-way was open, notorious, continuous and undisputed. However, the familial relationship between the parties, dating back to the early 1900s, together with their past neighborly cooperation, negates a finding of hostility. Based upon our review of the record, we do not find that plaintiff adduced sufficient evidence to establish that the use of the right-of-way by herself and her predecessors in title was under claim of right and adverse to defendants' interests. Therefore, we find no reason to disturb the judgment in favor of defendants.
Mercure, Yesawich Jr., Carpinello and Graffeo, JJ., concur.
Ordered that the judgment is affirmed, with costs.