This was originally posted on the SGR blog.
Court Reviews Quintet of Driveway Easement Claims
Still another dispute between neighbors over driveway rights in which five legal grounds in support of an easement claim were asserted– and resulted in a decision that carefully explained the legal basis of each such claim and meticulously applied the law to the facts.
Kurt and Gina Rogers and Pietro Melchiore owned property on Smith Drive in Endwell, New York. The Rogers owned property which fronted on Smith Drive, while Melchiorre’s property was located directly on the property, further from Smith Drive. There were two-family homes on both properties. Melchiorre lived on his property. And the Rogers rented out their property.
Melchiorre purchased his property in approximately 2015-2016. Melchiorre submitted a survey showing that he owned a sliver of land about 15 feet wide and 140 feet long, giving him access to Smith Road from his house. Melchiorre’s sliver of land was part of an overall area approximately 30 feet by 140 feet to the west of the Rogers’ and Melchiorre’s properties, upon which there was a paved driveway. The driveway served three duplexes-the Rogers’ and Melchiorre’s on the east and another duplex to the western side of the driveway owned by a non-party, Earl Clark. The Rogers had an express easement in their deed to use the driveway to access a paved parking located in the rear of their property but in front of Melchiorre’s property.
Melchiorre had his property surveyed in the summer of 2016 and again in April 2017. The Rogers alleged that following those surveys, Melchiorre began to challenge the right of the Rogers and their tenants to park on the eastern portion of the driveway. Melchiorre argued that he owned the 15 feet on the east portion of the right of way, which included part of the paved driveway and some grass area directly in front of the Rogers building. Clark owned a similar area to the west of the driveway. Essentially, Melchiorre maintained that the eastern portion of the driveway and the grass next to the driveway belonged to him. The Rogers claimed that they had maintained the driveway and grass area on the eastern side of the right of way since 2005 (since it was directly in front of their building), giving rise to a claim of adverse possession. Since at least 2017, Melchiorre had not permitted the Rogers to utilize the disputed portion of the driveway and the grass area. And Rogers alleged in the complaint that Melchiorre had verbally abused and/or threatened their prospective tenants and lawn maintenance workers, thereby impeding the Rogers’ efforts to lease their property.
In 2017, Melchiorre put a fence along the east side of the right of way, originally leaving a 4 foot opening in the fence, whereby the Rogers could access their building. Eventually, however, that opening was also closed off by Melchiorre, who claimed that tenants parking in front of the Rogers’ building interfered with Melchiorre’s use of the driveway.
The Rogers’ complaint asserted five causes of action: adverse possession, easement by prescription, easement by estoppel, easement in gross, and easement appurtenant. Melchiorre sought summary judgment on the grounds that he was the true owner of the disputed property and that a claim for adverse possession cannot lie when Rogers acknowledged that they were not the true owner, nor even alleged to be the true owner. Similarly, Melchiorre claimed that the Rogers were not entitled to an easement by prescription because they did not claim a right of use other than the express easement provided in their deed, which was limited to ingress and egress-parking and was not part of the easement. Additionally, Melchiorre argued that easement by estoppel did not apply because Melchiorre did not make any statements that Rogers could use the driveway for anything other than accessing the rear parking lot. Therefore there could be no detrimental reliance.
The Rogers claimed a right to the disputed property through adverse possession. The acquisition of title by adverse possession is not favored under the law. To sustain a claim of ownership based on adverse possession, a plaintiff is required to show, by clear and convincing evidence, that its possession of the disputed property was:
(1) hostile and under claim of right
(3) open and notorious
(5) continuous for the required period
The element of hostility is satisfied where an individual asserts a right to the property that is adverse to the title owner and in opposition to the true owner’s rights. The plaintiff/proponent of the adverse possession must come forward with affirmative facts to establish that the use was under a claim of right and adverse to the defendant’s interests.
Here, the Rogers acknowledged that they were not the rightful owners of the property. Their complaint stated, “[Melchiorre] is the true owner of the property in dispute.” Just as importantly, their use of the driveway was by reason of an express easement, which permitted the Rogers “the use of the driveway for ingress and egress to the rear of the premises … No portion of the easement herein granted shall be blocked at any time, including by vehicular parking.” The Rogers acknowledged, they were not the true owners, and their use of the driveway was by rights afforded them under the deed and easement. So their use could not be viewed as under a claim of right, or adverse to Melchiorre. Accordingly, the adverse possession claim was dismissed.
With respect to a prescriptive easement, a plaintiff must show that the use of the servient property was open, notorious, continuous, and hostile for the prescriptive period. The elements for adverse possession and easement by prescription depend on the same elements; adverse, open, and notorious, continuous and uninterrupted use of the property for ten years. For the same reasons that the adverse possession claim failed (the Rogers acknowledged they were not the true owners and their usage was based on their right to use the driveway under the easement granted in their deed), the claim for prescriptive easement could not be sustained. In addition, the Rogers pointed out that they had a good rapport with Melchiorre’s predecessor in title and that there was never a dispute as to parking cars on the driveway. That suggested neighborly cooperation and accommodation that would negate hostility.
The Rogers next claim was for an easement by estoppel, which may arise when, among other things, a party reasonably relies upon a servient landowner’s representation that an easement exists. Here, Melchiorre submitted evidence of the applicable deeds, showing that there was an actual easement permitting the Rogers to use the driveway. That easement also expressly provided that the Rogers could not use it for parking. The Rogers failed to allege that Melchiorre made any representations expanding on the rights noted explicitly in the easement. The Rogers’ allegations showed that Melchiorre adamantly protested the parking of cars in the driveway. The Rogers did not submit any evidence that suggested they detrimentally relied on anything Melchiorre said or did. Therefore, summary judgment to Melchiorre on the claim for an easement by estoppel was appropriate.
The Rogers’ fourth and fifth causes of action for an easement in gross and easement appurtenant were not recognized causes. Rather, they describe particular easements. An easement in gross is a merely personal, non-assignable, non-inheritable privilege or license. An easement in gross will not be presumed where it can reasonably be construed to be appurtenant to land. An easement appurtenant provides for a transferrable interest in land when such easement is:
(1) conveyed in writing
(2) subscribed by the person creating the easement
(3) burdens the servient estate to benefit the dominant estate
Whether the easement, in this case, was characterized as an easement in gross or easement appurtenant made no difference. The Rogers’ easement rights were not in dispute, and regardless of the category of an easement, Rogers did not state any cause of action under these theories. As such, Melchiorre was entitled to summary judgment on those causes of action as well.
Lastly, the facts establish that the fence put up by the Melchiorre might actually be within the 15-foot wide easement area and might technically deprive the Rogers (or the landowner to the west of the driveway), the full width of the easement area. However, as it did not interfere with Rogers ability to utilize the driveway to access the back parking lot, Melchiorre could install a fence. A landowner burdened by an express easement of ingress and egress may narrow it, cover it over, gate it or fence it off, so long as the easement holder’s right of passage is not impaired. Here, the Rogers did not allege that the fence prevented them from using the driveway to access their rear parking lot, and the express terms of the deed and right of way showed that the easement was for ingress and egress, not parking. The Rogers were not deprived of their ability to utilize the driveway for ingress and egress.