Opinion
November 20, 1961
In an action between two adjoining property owners, to establish by prescription a driveway easement for the benefit of plaintiffs over a portion of defendant's property and to enjoin interference therewith, defendant appeals from a judgment of the Supreme Court, Kings County, rendered June 15, 1961 in favor of plaintiffs, after a nonjury trial before a Special Referee, which enjoined defendant from interfering with such easement and which directed defendant to remove a fence erected by her in the driveway along the boundary line. Judgment reversed on the law and the facts, without costs, and complaint dismissed. Informal findings of fact, insofar as they may be inconsistent herewith, are reversed, and new findings are made as indicated herein. The parties are owners of adjoining properties, on each of which is a dwelling with a garage in the rear. Between the houses is a paved driveway, approximately 13 feet 4 inches at its widest and 12 feet 8 inches at its narrowest, the property line running in the middle. In our opinion, the evidence was insufficient to establish adverse user by plaintiffs and their predecessors in title for 15 years or more ( Jacobs v. Lewicki, 12 A.D.2d 625, affd. 10 N.Y.2d 778; Kopp v. Niemetz, 11 A.D.2d 739). Nolan, P.J., Ughetta, Christ, Pette and Brennan, JJ., concur.