Appellate Court Upholds Decision Limiting Use of Right of Way on Clients’ Property; Claim for Alleged “Prescriptive Easement” Denied’; Illustration of the “Rare Case” Where Implied Permission for Road Use Can Be Established Without Trial

Posted on June 1, 2012

The firm represented Plaintiffs Tom and Linda Alexander in Alexander v. Oakley, 943 NYS2d 291 (3d Dept., May 3, 2012), a property dispute involving the use of a private right of way on the Alexanders’ land. The Plaintiffs brought the action under Article 15 of the N.Y. Real Property Action and Proceedings Law to declare the extent of the parties’ interests in the disputed roadway, which traverses the Plaintiffs’ property and was being used by several property owners as a point of access to their parcels in the Town of Hurley and the Town of Woodstock, Ulster County. The parcels in the Town of Hurley were once part of a 150 acre farm first established by Linda Alexander’s great-grandfather in 1901.

The Defendant property owners in the Town of Woodstock sought summary judgment dismissing the complaint, and the Alexanders cross-moved for summary judgment declaring that the Woodstock owners had no right to use the disputed roadway. One Defendant, a private sportsmen’s club, claimed that its members’ use of the disputed roadway in an open, notorious and continuous manner for over fifty years had supposedly created an easement by “prescription.”  The New York City Department of Environmental Protection (NYCDEP) and another private owner in Woodstock who operates a mail order business form her house also argued that the use of the road by their predecessor in interest, a summer camp that was in operation from the 1940s through the 1980s (known locally as “Camp Alert”) gave rise to an easement by “prescription.”  In addition, the Woodstock parties claimed that they had a deeded right of way over the disputed roadway. Finally, the NYCDEP argued that its property, which was acquired for watershed conservation, was benefited by an implied easement by necessity because the parcel in question would supposedly be landlocked without access over the Alexander property.

The lower court granted the Alexanders summary judgment after finding that the Woodstock property owners had not met their burden of proof in establishing an easement by prescription.  The court found that the Alexander family had lived on the property for generations and allowed the disputed roadway to be used by neighbors, family members and the general public from the time the family-farm was first established in 1901. It also found that the Alexander family had used the disputed roadway in common with the defendants and their predecessors in title to do odd jobs at Camp Alert and to hunt and fish with members of the sportsmen’s club. Thus, the court held that the defendants’ prior use of the road in common with Plaintiffs, their family members and the general public was with the Plaintiffs’ “implied permission” as a neighborly accommodation, eviscerating the defendants’ claims to an easement by prescription.

The lower court further held that the Woodstock defendants possessed no recorded right over the Alexander property in their deeds, and that NYCDEP had no implied easement by necessity based on the affidavit of the Plaintiffs’ title expert who opined that there was no commonality of title that could give rise to an easement by necessity.

The NYCDEP and one other Woodstock defendant, who acquired her property from Camp Alert, appealed the Decision to the Supreme Court, Appellate Division, Third Department, arguing that there were issues of fact making summary judgment inappropriate. With regard to prescriptive easement claims, the Defendants claimed that recent decisions from the Third Department required a remand to the trial court because the question of “implied permission” was supposedly one for the fact finder and should not be resolved on summary judgment. Specifically, the Defendants pointed to the Third Department’s 2010 holding in Barra v. Norfolk S. Ry. Co. (75 A.D.3d 821 [3d Dept., 2010]) asserting that “[t]he rare case in which implied permission is established on summary judgment normally involves irrefutable proof of a history of cooperation and accommodation, such as an admission of that fact by a party seeking the prescriptive easement…or a circumstance under which a prevailing presumption in favor of permissive use is invoked, such as where the parties are related by blood or part of a select group of friends.”

After reviewing the evidence in the record, the Appellate Division upheld the lower court decision finding that the use of the disputed roadway by the defendants and their predecessor in title was by implied permission and in the spirit of neighborly accommodation. The Third Department relied on affidavits from the Alexanders describing the use and custom in the area going back to the early 1900s when the disputed roadway was nothing more than a narrow cattle trail used to move animals and equipment around the family farm. It also found the defendants failed to present evidence that Camp Alert’s use was under a hostile claim of right, citing to another Third Department case (Nixon v. Morris, 91 AD3d 1170 [3d Dept. 2012]) where the user acknowledged that “everyone” used a disputed roadway and this acknowledgment was treated as an admission of permissive use that could not give rise to a prescriptive easement in favor of any particular property owner. The defendants submitted affidavits with similar statements in this proceeding that were generally in accord with Linda Alexander’s recollection that her family would always let friends, neighbors, family members, hunters and fisherman use the disputed roadway.

The Appellate Division held that the Woodstock property owners had no deeded right to use the disputed roadway.  The Court relied on the affidavit of Plaintiffs’ title expert who traced the defendants’ chain of title back to the 1800s and concluded that right of way language was created out of whole cloth and added to the subject deeds in the late 1990s. The Appellate Division also affirmed the lower court’s determination that the NYCDEP could not establish an easement by necessity because the Plaintiffs’ title expert had shown there was never any commonality of title between the Plaintiffs’ property and Camp Alert. The NYCDEP did not submit any evidence to refute the Plaintiffs’ title expert.

In general, the holding is a good illustration of the “rare case” where implied permission for use of a disputed roadway can be established on summary judgment.  Evidence that the disputed roadway was used by the defendants in common with the Plaintiffs, their family members, friends, neighbors, and sportsmen rebutted any presumption of “adversity” or “hostility” that might otherwise arise. The defendants failed to produce any evidence showing this permissive use was transformed into a hostile claim of right that would support their claimed “easement by prescription.”

For questions relating to the firms’ Boundary, Rights of Way, Roads and Title Disputes practice, contact Michael J. Moore.