Decided June 7, 1979 Appeal from (3d dept.: 68 A.D.2d 944) MOTIONS FOR STAY
No definite explanation for their presence was given and it would be purely speculative to assume that such vague incidents represented acts of dominion by a municipality. Accordingly, we hold that the record does not support the trial court's finding that the disputed road had become a public town highway (compare Impastato v. Village of Catskill, 55 A.D.2d 714, affd 43 N.Y.2d 888, with Nogard v. Strand, 38 A.D.2d 871). Turning to the question of whether plaintiffs had any private right to enjoy the dirt road, we observe initially that, since their use was continuous, open and notorious, it raised a presumption of hostility (Weinberg v Shafler, 68 A.D.2d 944; Village of Schoharie v. Coons, 34 A.D.2d 701, affd 28 N.Y.2d 568). The presumption was not dispelled by the fact that adjoining owners and the public generally also made some use of the dirt road (cf. Pirman v. Confer, 273 N.Y. 357, 363), because the surrounding circumstances make it plain that plaintiffs exercised a separate use of the road adverse to that of the owners over whose lands it passed. It was uncontradicted that plaintiffs made annual repairs along the roadbed wherever they were required and frequently limbed trees and brush which impeded their passage.
Victor M. Meyers for respondents. Order affirmed, with costs, for reasons stated in the memorandum at the Appellate Division ( 68 A.D.2d 944) inasmuch as that view more nearly conforms to the weight of the credible evidence. Concur: Chief Judge COOKE and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and MEYER.
We affirm the order at Special Term which granted a preliminary injunction. For the purpose of sustaining the validity of the complaint, hostile use may be presumed under the circumstances alleged here (see Weinberg v Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). Nonetheless, plaintiffs should amend their complaint to add a necessary party to the action pursuant to CPLR 1003 and otherwise amend their complaint pursuant to CPLR 2001, if they are so advised, and serve the same within 20 days of the date of the order herein and the matter should thereafter promptly proceed to trial.
The use need not be constant. It "may be continuous though there are periods of time more or less extended between the specified acts of use" (Restatement, Property, Servitudes, ยง 459, comment b; compare Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876, with Battista v. Pine Is. Park Assn., 28 A.D.2d 714). Here the cabin of plaintiffs Beutler and Randazzo was principally used during the summer months, and they and their predecessors made regular use of the extension as a means of access (see 4 Tiffany, Real Property [3d ed], ยง 1202; 25 Am Jur 2d, Easements Licenses, ยง 56). Where such regular seasonal use is made for access to a summer cabin, a landowner may not reasonably believe that a hostile claim is not being asserted.
The elements of an easement by prescription are similar although demonstration of exclusivity is not essential ( Di Leo v. Pecksto HoldingCorp., 304 N.Y. 505, 512; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). In either case where all of the other elements are established by the one claiming title or easement under adverse possession or user, the first element of hostile possession or user will be presumed and the burden shifts to the record owner to produce evidence rebutting the presumption of adversity (RPAPL 521; Di Leo v. Pecksto Holding Corp., supra; Beutler v. Maynard, 80 A.D.2d 982, affd 56 N.Y.2d 538; Village of Schoharie v. Coons, 34 A.D.2d 701, affd 28 N.Y.2d 568; Weil v Snyder, 25 A.D.2d 605).
Here, defendants insist these conditions did not exist from 1956 to 1961, a period sought to be tacked by the county, when defendants' property was owned by the Du Monds' grandson, Gary, and any such use of the right of way during that period could not have been hostile. This contention does no more than rebut the presumption favoring the county's position that where, as here, the use has been shown to be open, continuous and uninterrupted, hostility will be presumed ( Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876). Accordingly, the county is placed in the position of establishing the element of hostility for the five-year period from 1956 to 1961 by direct proof.
We now affirm. An easement by prescription requires proof of the adverse, open, notorious and continuous use of another's land for the prescriptive period (see, Di Leo v Pecksto Holding Corp., 304 N.Y. 505; Susquehanna Realty Corp. v Barth, 108 A.D.2d 909). Under ordinary circumstances an open, notorious, uninterrupted and undisputed use of a right-of-way is presumed to be adverse or hostile, under claim of right, and casts the burden upon the owner of the servient tenement to show that the use was by license (see, Di Leo v Pecksto Holding Corp., supra; Kaufman v Eidelberg, 78 A.D.2d 674, 675; Weinberg v Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876). The record adequately supports the finding that the plaintiffs' use of the right-of-way was open, notorious, uninterrupted and undisputed for well beyond the prescriptive period (cf., Lawrence v Mullen, 40 A.D.2d 871). It was, therefore, presumed to be adverse or hostile, under a claim of right, casting the burden upon the defendants as owners of the servient tenement to show that the use was by license.
Here, plaintiffs have established open and notorious, continuous and uninterrupted use of the extension in the operation of their shooting preserve for the prescriptive period. While the presumption that the use was adverse may be rebutted, there is no proof in this record that the use was permissive (see, Reed v. Piedimonte, 138 A.D.2d 937, lv denied 72 N.Y.2d 803; Beutler v. Maynard, supra), that the user and landowner are related by blood or are members of a small, select group of friends (see, Weinberg v. Shafler, 68 A.D.2d 944, affd 50 N.Y.2d 876), or that the extension was used by the general public (see, Epstein v. Rose, 101 A.D.2d 646, lv denied 64 N.Y.2d 611; Fila v. Angiolillo, 88 A.D.2d 693, lv denied 57 N.Y.2d 609). In view of the result reached, we need not consider plaintiffs' alternative argument that the elements of a prescriptive easement are established by tacking onto certain periods of use of the extension to provide access to one of the cabin sites.
Plaintiffs also maintained a clothes line and erected a screenhouse on the disputed premises and used the same area as an extension of their patio. The factors mitigating against the claim of adverse possession were the intermittent and limited nature of plaintiffs' use, their friendship with defendants' predecessors in title, which may rebut a presumption that their use was hostile (see, Susquehanna Realty Corp. v Barth, 108 A.D.2d 909, 910; Weinberg v. Shafler, 68 A.D.2d 944, 945, affd 50 N.Y.2d 876), plaintiffs' offers to purchase the disputed area from defendants and defendants' immediate predecessor in title (see, City of Tonawanda v. Ellicott Cr. Homeowners Assn., 86 A.D.2d 118, 123; see also, 6 Wigmore, Evidence ยง 1778, at 284 [Chadbourn rev 1976]), as well as plaintiffs' acknowledgement of the location of their boundary line when applying to the town for a permit to build the addition to their camp. Equally significant is the fact that plaintiffs had complied with demands made by defendants' predecessors to remove their personal property and debris from the disputed premises. Plaintiffs were bound to establish their claim over a 10-year period which did not commence until their purchase of lot No.