Was Easement (Not) Established by Clear and Convincing Evidence?
In November 1991 or the spring of 1992, Dean L. Bloch purchased property located in Barrytown, which he later conveyed to both himself and his wife, Gale Wolfe. The Hudson River borders the western side of the property, and the rest of the property is surrounded by property that was owned by Unification Theological Seminary. The Blochs’ deed for the property included a right-of-way that abutted the property to the east and extended south to local roads.
The Blochs’ did not utilize the portion of the right-of-way that abutted their property for ingress and egress. Instead, they used a driveway that ran south through the southern boundary of their property, bisected UTS’s property, and joined the right-of-way near the southern portion of UTS’s property.
In 2014, Casella Wood, LLC, which is associated with Marirose Blum Bump and Robert Bump, purchased UTS’s property. In June 2016, Casella blocked the Blochs’ access to the driveway.
In November 2016, Blochs commenced an action seeking a judgment declaring that they had a prescriptive easement over the driveway and a permanent injunction enjoining Casella from interfering with their use of the driveway. Casella interposed an answer and asserted a counterclaim for a judgment declaring that the Blochs did not have a right to use the driveway and they had the right to exclude the Blochs from the driveway.
After a nonjury trial, Supreme Court issued a judgment declaring that the Blochs had a prescriptive easement over the driveway and enjoining Casella from interfering with their use of the driveway. Casella appealed..
In reviewing a determination made after a nonjury trial, the power of this Court is as broad as that of the trial court, and the Court may render the judgment it finds warranted by the facts, bearing in mind that in a close case, the trial judge had the advantage of seeing the witnesses.
To acquire an easement by adverse possession or an easement by prescription, it must be shown that the use was hostile, open and notorious, and continuous and uninterrupted for the prescriptive period of 10 years. The elements of a prescriptive easement must be established by clear and convincing evidence.
When the entry upon land has been by permission or under some right or authority derived from the owner, adverse possession does not commence until such permission or authority has been repudiated and renounced and the possessor thereafter had assumed the attitude of hostility to any right in the real owner. Such permission can be express or implied and if the first possession is by permission it is presumed to so continue until the contrary appears. And hostility will be found lacking where use of the disputed property was permitted as a matter of willing accord and neighborly accommodation.
The Blochs contended that a map created in 1974, which indicated the presence of the driveway, established that their use of the driveway was open and notorious and continuous after 1974, and entitled them to a presumption of hostility. However, they presented no evidence about the use of the driveway from 1974 to when they initially purchased their property in November 1991 or the spring of 1992. Accordingly, the Blochs failed to demonstrate their entitlement to a prescriptive easement based on any 10-year period during that time interval.
The Blochs presented evidence establishing that they began using the driveway openly and notoriously and continuously starting in November 1991 or the spring of 1992. However, the trial evidence also demonstrated that, prior to that use of the driveway for a period of 10 years, UTS gave them permission to use the driveway in a letter dated July 12, 2001. Although certain correspondence sent by UTS later conditioned that permission on the Blochs’ execution of a lease, which they never executed, the final letter from UTS to the Blochs, which was dated September 26, 2001, granted them unconditional permission to use the driveway. There was no evidence presented that UTS revoked that unconditional permission thereafter. Accordingly, Supreme Court erred in determining that the Blochs were entitled to a prescriptive easement over the driveway, since they failed to demonstrate, by clear and convincing evidence, that their use of the driveway was hostile for a 10-year period.