Opinion
November 28, 1967
Appeal by plaintiff from a judgment of the Supreme Court, St. Lawrence County, entered on March 1, 1967, which dismissed the complaint herein on the merits. The plaintiff seeks an adjudication that it has a permanent and perpetual right of way over a roadway which extended westerly from its lands across lands of the defendant known as Lots Nos. 5 and 6 in Township 8, and Lots Nos. 46 and 47 of Township 11 in Macomb Purchase, Great Tract No. 2, situate in the County of St. Lawrence. The plaintiff also seeks an injunction preventing the defendant from interfering with its free and uninterrupted use of the said right of way. The title to lands owned by the plaintiff and the defendant is derived from Oval Wood Dish Corporation, a common predecessor in title which had reserved the right to cross and recross the lands ultimately conveyed to the defendant by means of a certain roadway known as the "Water Road." The conveyance from the Oval Wood Dish Corporation to the plaintiff recorded in November, 1964 did not provide for such an easement. It appears from the record that a road called the Water Road, which is not alleged to be a public highway, and which is shown on U.S. Geographical Survey Maps dated 1920 and 1921, ran in an easterly direction from Stark Falls through Lots 2, 4, 5, 6 and 7 in Township 8, Lot No. 2 in Township 9, and continued on through lands now owned by the plaintiff. In the 1940's the Niagara Mohawk Power Corp., in establishing a power generating facility, proceeded to dam the Raquette River at Stark Falls which caused the Water Road to be flooded in an area where it crossed that part of Lot No. 5 now owned by the defendant, and also where it crossed Lots Nos. 2 and 4 in Township 8. After the flooding of the road, the Niagara Mohawk Power Corp. constructed a section of road around the flooded area on Lot No. 5 which joined the Water Road with another road referred to as the Colvin Road which proceeded in a general northwesterly direction across that part of Lot No. 5 now owned by the defendant to Lot No. 47 in Township 11 and eventually to a public town road. Although the plaintiff has easement rights across Lots Nos. 6 and 7 over Water Road which crosses these lots, there is no grant of any easement over that portion of Lot No. 5 owned by the defendant. This section of the road was constructed by George Colvin, the defendant's predecessor in title, in the year 1952 at which time he erected a gate at the northerly boundary of Lot No. 5. Colvin Road, after the flooding of Water Road, was connected to that part of Water Road undisturbed by the flooding by means of the section of road constructed by Niagara Mohawk Power Corporation. The plaintiff claims a prescriptive easement across this new section of road apparently on the theory that the Colvin Road built in 1952 had been used continuously and without interruption for a period of 12 years and the relocation of the road by Niagara Mohawk Power Corp. is an insubstantial deviation which did not defeat the rights which it had acquired. One claiming a right of way by prescription must prove an open, notorious, continuous, and uninterrupted adverse use. ( Di Leo v. Pecksto Holding Corp., 304 N.Y. 505.) There is no doubt that the general rule is that the use of an easement for the statutory period, unexplained, will be presumed to be under a claim or assertion of right, and adverse, and not by leave or favor of the owner, but the circumstances surrounding the use often afford an explanation and defeat the presumption. If the use is "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.) In the instant case the evidence is that George Colvin constructed the "Colvin Road", which was later extended by Niagara Mohawk Power Corp., apparently with his permission or within easement rights granted by Colvin to it; that he erected a gate at the northerly end of the road which was kept locked; that he gave oral permission and later written easements to certain clubs and their members having camps on the appellant's lands to cross this road for access to their camps; that he gave permission to Oval Wood Dish Corporation, appellant's predecessor in title, to use this road by providing a key to Frank J. Bencze, its Superintendent of Land and Logging, in the year 1955; that Oval Wood Dish Corporation used this road for various purposes thereafter; that the respondent changed the locks in 1962 after it purchased the premises; that by letter dated August 26, 1964 the appellant was advised in effect by the respondent that it had no easement rights across the Colvin Road; that a survey group employed by the plaintiff had been furnished with a key after requesting permission to cross the road. The clear import of this testimony, most of which forms part of the plaintiff's case, is that the use of the Colvin Road from the time of its construction was permissive, and that there was no assertion of a right to use this road hostile to the owner and made known to him until the time of the commencement of this action or possibly shortly before. Such facts as to use are not sufficient to give rise to a prescriptive easement. At the time this action was commenced, the requisite prescriptive period necessary to establish a prescriptive easement was 15 years. (Civ. Prac. Act, § 34; now CPLR 218, subd. [b].) The maximum period of use shown by the plaintiff and its predecessor of Colvin Road is 12 years. Assuming that the Colvin Road construction was only a slight deviation and that the plaintiff's predecessor had acquired prescriptive rights to Water Road by reason of its use thereof, the plaintiff cannot "tack" its predecessor's alleged adverse user onto its use to make up the prescriptive period, since the deed to the plaintiff does not contain the alleged easement over Water Road, and there is no proof that the plaintiff's grantor intended to include such easement therein. ( Jacobs v. Lewicki, 12 A.D.2d 625, affd. 10 N.Y.2d 778; Van Roo v. Van Roo, 268 App. Div. 170, affd. 294 N.Y. 731.) It likewise follows that assuming that the Colvin Road is a material deviation, any alleged user by the plaintiff's predecessor cannot be tacked to the plaintiff's alleged user to make up the required prescriptive period, since the deed to the plaintiff contains no reference to the Colvin Road and there is no proof that its grantor intended to include any easement therein. Thus, whether the required prescriptive period is 10 years under CPLR 212 (subd. [a]) as argued by the plaintiff, or 15 years under section 34 of the Civil Practice Act as we have determined, the plaintiff has not established an adverse use for the required period of time over Colvin Road. The plaintiff also argues that the basic road with which we are concerned is the Water Road and a change in location was required by the flooding of a portion of said road, but that such change in the road did not defeat the rights of the plaintiff to the usage of the road as relocated. This contention is based upon the premise that slight or immaterial changes or deviations in a portion or portions of a route will not prevent the continuation of a user of a prescriptive right. The plaintiff asserts, in addition to its easement rights in Water Road, prescriptive rights in that portion of Water Road which crossed defendant's land beyond Lots Nos. 6 and 7, thus claiming a right to cross the lands of the defendant (Little Kildare) by means of Water Road. There is evidence that the road had been in existence since at least 1910; that it was well defined and shown on the U.S. Geographical Survey Maps dated 1920 and 1921; and that many people were observed using the Water Road for various purposes since 1910. After the flooding of Water Road Lot No. 5, the Niagara Mohawk Corporation relocated the road by constructing a bypass around the flooded area which resulted in a new means of access to both Water Road beyond the flooded area as well as to the newly constructed Colvin Road. We have concluded that the judgment should be modified to give effect to the trial court's finding that "both Oval Wood Dish and Diamond International, in conjunction with the public generally, have a right of way to traverse the lands of Little Kildare by use of the Water Road to the west and to the Garlough property" (see CPLR 5522; Hacker v. City of New York, 26 A.D.2d 400, 403, and cases there cited); and we find the complaint, including the prayer for judgment, broad enough to encompass that relief; but to the extent that the complaint may be deemed insufficient in that respect, it will be deemed amended to conform it to the proof (CPLR 3025, subd. [c]; and, see 3 Weinstein-Korn-Miller, N.Y. Civ. Prac., par. 3025.31). Judgment modified, on the law and the facts, in accordance with this memorandum decision and, as so modified, affirmed, without costs. Settle order. Gibson, P.J., Herlihy, Aulisi, Staley, Jr., and Gabrielli, JJ., concur in memorandum Per Curiam.