Opinion
August 1, 1961
Appeal from a judgment of the Supreme Court, Saratoga County. Appellants seek a permanent injunction restraining respondents from trespassing on certain lands they hold under long-term lease. Respondents assert that they have a right to cross these lands either because appellants lack title or because they have acquired a prescriptive easement through long-continued use. The court below has found a prescriptive easement in favor of the respondents. We agree. Appellants and respondents are all leaseholders of property formerly owned by one Phillip Hart in the area called Hart's Point on the northerly shore of Galway Lake, sometimes known as Amsterdam Reservoir, in Saratoga County. Phillip Hart leased a certain lakeside parcel to Quant and Flansburg, appellant Bresler's predecessors, beginning in 1912 and an adjoining parcel to appellant Topping in 1928. It also appears, however, that appellant Topping had occupied the premises covered by the 1928 lease for a period of time prior thereto on an informal basis. In 1914 Hart leased to one Wheaton, respondent McCarthy's predecessor, land directly north of what is now Bresler's leasehold. By the terms of the lease to Wheaton, Hart gave said lessee "a right of way to the waterfront over lands of the party of the first part (Hart) which were not then under lease to anyone else." In about 1920 while staking off the property he had leased to his various lessees, Hart designated a 10-foot strip along the easterly edge of the property leased to Quant and Flansburg (between Bresler's and Topping's present leaseholds) as a right of way for the interior lessees to gain access to the lake. At about the same time or even perhaps previous thereto, Quant and Flansburg set out a row of pine trees along the westerly edge of the 10-foot strip. This suggests that the servient owners and the dominant users were both of the mind that the use was by right. This planting of the trees furthers such an impression since it can be inferred that Quant and Flansburg, recognizing a right in the other campers to the use of the path, wished to establish privacy and a permanent line setting their parcel off from the right of way. Neither the lease to Quant and Flansburg or to Topping mention the easement and, in fact, Topping's lease specifically conveyed to him all of the land to the Quant-Flansburg boundary. The result of a survey supplied by appellants would indicate that the 10-foot strip set off by Hart was, in fact, actually on the property he had already leased to Quant and Flansburg, and thus if the survey is accepted as correct, respondents' use of the right of way could only be upheld by finding the existence of a prescriptive easement. McCarthy received by assignment Wheaton's leasehold interest in 1937 and presently is a tenant under a lease dated 1950 with Hart's successors conveying the same easement interest as existed in the Wheaton lease. Brunt and Lis are also long-term leaseholders having acquired their interest by assignment in 1952 and 1954 respectively. Respondents claim to a prescriptive easement is based on continued use of this property by them or their predecessors for more than the statutory period prior to Bresler's acquisition of his leasehold in 1955. It seems clear from the testimony that from 1920 to 1946 the path as staked out by Phillip Hart was in continuous use by the people to the north of plaintiffs' lands; that when Davidson came on the Quant-Flansburg parcel in 1946 he attempted to stop this traffic; that after Bresler occupied the premises in 1955 traffic continued but the people used a portion of Bresler's lawn along the edge of the right of way in order to skirt an overgrown condition at the northerly portion of the path and then cut back into the right of way and proceeded to the lake; that Bresler was willing to co-operate in enabling McCarthy to get his boat to the water by clearing the overgrown portion; but that in 1958 Bresler considered as a trespass the building of a dock by the Lis family at the lake from end of the right of way. Appellants contend that there is insufficient proof to establish that the use of the right of way by respondents or their predecessors was adverse. The five essential elements necessary to constitute effective adverse possession are that the possession in question be 1) hostile and under claim of right, 2) actual, 3) open and notorious, 4) exclusive and 5) continuous ( Doherty v. Matsell, 119 N.Y. 646). In our opinion the evidence clearly indicates that respondents or their predecessors openly and notoriously, continuously and uninterruptedly used the right of way prior to 1955 for more than the period necessary to spell out a prescriptive right. The mere fact that some of appellant Bresler's predecessors failed to complain or object to the use of their premises does not defeat the presumption that the use was adverse. As stated by Judge FULD in Di Leo v. Pecksto Holding Corp. ( 304 N.Y. 505, 512): "Beyond that, this court has consistently held, `Under ordinary circumstances, an open, notorious, uninterrupted and undisputed use of a right of way is presumed to be adverse under claim of right and casts the burden upon the owner of the servient tenement to show that the user was by license' ( Pirman v. Confer, 273 N.Y. 357, 363; see, also, Nicholls v. Wentworth, 100 N.Y. 455; Ward v. Warren, 82 N.Y. 265; Hammond v. Zehner, supra, 21 N.Y. 118)." While the claim of improper tacking because of an alleged lack of privity with his predecessors is raised as to McCarthy, no such contention exists as to the claims of Lis and Brunt. As to McCarthy, while it could be found that the evidence establishes continued adverse use of the strip of land from 1914 to 1955 by McCarthy and his assignor Wheaton by holding McCarthy in contractual privity with Wheaton, such a finding is unnecessary because by his own adverse use of the right of way from 1937 to 1955 McCarthy gained a prescriptive easement. Judgment affirmed, with costs. Bergan, P.J., Gibson, Herlihy and Reynolds, JJ., concur.