Opinion
April 5, 1971
In an action, inter alia, for a judgment declaring that there is an easement by implied grant or reservation, or an easement by prescription, in favor of that portion of the plaintiffs' garage which extends onto and upon defendants' land to the north thereof for a distance of .30 feet, plaintiffs appeal from a judgment of the Supreme Court, Nassau County, entered June 26, 1970, which adjudged that plaintiffs have no right to maintain the encroachment of their garage upon defendants' property and are not entitled to recover for any damage to the garage as a result of the encroachment. Judgment reversed, on the law, without costs, and declaration granted to plaintiffs that they have an easement by prescription in favor of that portion of their garage which extends onto and upon defendants' property to the north thereof for a distance of .30 feet. The action was submitted on an agreed statement of facts. In 1948, plaintiffs acquired title to property upon which was located a house and a detached garage. A part of the rear wall of the garage, however, extended over the boundary line of the property and onto the adjoining property, which is now owned by defendants, for a distance of .30 feet. Both parcels were conveyed by a common grantor. Plaintiffs allege that they acquired rights in the .30 feet of property extended upon, by virtue of an easement by implication from the common grantor and by virtue of an easement by prescription. In our opinion, plaintiffs failed to establish that an easement by implication existed. A prerequisite for such a finding is that the easement must be necessary to the beneficial enjoyment of the land granted. Special Term properly held that the intruding portion of the garage was so minute that it could be simply altered without doing substantial damage to the structure. There was no necessity to continue the extension, since the garage could be used without it. Accordingly, no easement by implication arose in favor of plaintiffs ( Paine v. Chandler, 134 N.Y. 385; Frensdorf v. Stumpf, 30 N.Y.S.2d 211, 222). We are of the opinion, however, that plaintiffs have sustained their burden of proving all the facts necessary to constitute an easement by prescription by virtue of their actual, open and notorious, exclusive and continuous use of that portion of their garage extending onto .30 feet of defendants' property since 1948 ( Belotti v. Bickhardt, 228 N.Y. 296; Bresler v. Brunt, 14 A.D.2d 650; Rasmussen v. Sgritta, 33 A.D.2d 843; CPLR 212, subd. [a]). A presumption was thereupon raised which has not been rebutted herein, that the use was adverse, hostile and under a claim of right ( Belotti v. Bickhardt, supra; Hey v. Collman, 78 App. Div. 584, affd. 180 N.Y. 560; Millious v. Board of Educ. of Newark Val. Cent. School, 13 Misc.2d 944). Although defendants damaged the extending part of plaintiffs' garage, the damages are de minimus and no award of damages need be made. Rabin, P.J., Hopkins, Munder, Martuscello and Latham, JJ., concur.