Scott E. Mollen

Prescriptive Easements—Real Property and Proceedings Law Art. 15

Plaintiffs own residential properties abutting a private road known as “Windmill Lane,” which runs perpendicularly to Further Lane from its southern boundary and terminates near the Atlantic Ocean. Plaintiffs commenced an action, pursuant to Real Property Actions and Proceedings Law (RPAPL) Art. 15, seeking a judgment declaring that each of plaintiff's properties were “benefited by a prescriptive easement for access by foot from the end of Windmill Lane to the Atlantic Ocean beach along the westerly lines of properties known as 27 Windmill Lane and 33 Windmill Lane.” The plaintiffs also sought a determination that properties known as 3 Windmill Lane, 7 Windmill Lane and 11 Windmill Lane “each have an express easement to access the subject pedestrian path.”

The plaintiffs further sought a preliminary injunction barring a defendant from interfering with the use of Windmill Lane and directing the removal of obstructions that blocked use of the easement. Plaintiffs had alleged that certain defendants had prevented the use of the easement by “installing boulders, grass and other landscaping features within the westerly 25-foot-wide portion of the easement area.”

Defendants include owners who have title to the properties known as 33 Windmill Lane (Shuman Property) and 27 Windmill Lane.

Certain Defendants had moved for summary judgment dismissing the complaint and cross claims, arguing, inter alia, that the plaintiffs lack deeded rights to use the pedestrian easement; that the plaintiffs past use of the easement was “merely a neighborly accommodation” and did not create a prescriptive easement; and that obstructions erected within the easement area before commencement of the action have already been removed.

The plaintiffs opposed the defendants' motions and cross-move for summary judgment in their favor on the complaint. They claimed, inter alia, that affidavits and deposition transcripts “establish a prima facie case that each has acquired a prescriptive easement over the 5-foot-wide right of way….” They further argued that a 1949 deed created a 50-foot-wide easement for ingress and egress and benefited all of the properties abutting such easement. They also contended that by placing some stones on the roadway and installing a gate, a defendant obstructed the plaintiffs' deeded rights and the prescriptive easement.

The plaintiffs submitted copies of deeds, their own affidavits and affidavits of nonparty witnesses, and affidavits of an attorney “allegedly engaged in the practice of examining land titles.” The Shumans also opposed the defendant's motion and submitted deeds and an affidavit that stated that sometime in 2010, defendant began objecting to the neighbors' use of “our easement on Windmill Lane and the eleven foot wide private roadway to access the beach path which is located on our property” and that such defendant caused structures to be erected within the boundaries of Windmill Lane and the private roadway, including a gate and two stone walls or “gabions.” The affidavit noted that although the gate and a stone wall had been removed, a remaining stone wall makes access to plaintiffs' property “more difficult.”

Certain parties argued that since the deeds to certain properties (15 Windmill Lane and 23 Windmill Lane) embodied language conveying a right of way over a five foot strip of land and such language was not contained in the plaintiffs' deeds, it is “likely” that “the predecessor in title only intended that the owners of such properties have a right to use the footpath to access the beach.” They asserted that granting the plaintiffs' easements by prescription would “'result in a windfall to plaintiffs and rob them of their valuable deeded beach access rights by essentially effectuating a private taking without compensation for the loss of such rights.”

Third party defendants had cross moved for summary judgment dismissing the third-party complaint. They also sought, inter alia, a judgment declaring that a defendant lacked rights in the unpaved portion of the Windmill Lane easement.

Evidence showed that the Windmill Lane easement had been created by a common grantor, by way of a deed in November of 1949. That deed conveyed a “perpetual right-of-way over the westerly twenty-five (25) feet of the fifty (50) foot private road…for ingress to and egress from (the grantor's) premises…'from and to Further Lane,'” as well as reserved to the grantor a common right of way over the easterly twenty-five (25) feet of the fifty (50) foot private road for ingress and egress from other premises owned by the grantor, on the west, from and to further land. The 1949 deed states that the private road “shall be and remain a common driveway for the benefit of the owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of (grantor) on the west, or any part thereof” and the transfer of title includes all of the grantor's “right, title and interest, if any, in and to any land adjacent to the above described premises to the south thereof, to the mean high water line of the Atlantic Ocean.”

Twelve parcels of residential property abut Windmill Lane and 14 parcels presently use the easement for ingress and egress. Only part of the Windmill Lane easement is paved. The “beach access path at issue measures five feet in width.”

The court explained, inter alia, the general rules that govern prescriptive easements.

The court then found that the plaintiffs had established a prima facie case that they each have a “prescriptive easement over the 5-foot-wide path.” They had provided “clear and convincing proof of their adverse, open, notorious and continuous use of such properties for 10 years or more to access, by foot, the Atlantic Ocean beach from Windmill Lane.” The court noted, inter alia, that the aforementioned gate had not actually been locked and did not in fact “block access to the path leading to the beach.”

However, two plaintiffs failed to establish a prima facie case which entitled them to summary judgment on their claims for a prescriptive easement. There were issues of fact as to whether their use within the 10-year prescriptive period was hostile or permissive.

Two other plaintiffs had failed to make a prima facie case for prescriptive rights based on the conduct of their predecessors in title. These plaintiffs relied on an affidavit regarding relatives' prior use of the path to access the beach, but were not based on “direct, personal knowledge.”

As to those plaintiffs who established a prima facie case for a prescriptive easement, the defendants have failed to rebut the prima facie showings by submitting deposition and affidavit testimony that use of the easement area was not hostile and was instead a “neighborly accommodation.” The evidence did not establish that the defendants, or their predecessors in title had attempted to “stop the use by such plaintiffs or plaintiffs' predecessors in title before their respective prescriptive easements matured.”

Moreover, the fact that people who rented plaintiffs' properties also used the path to access the beach did not prove that the right of way was used by the general public. Accordingly, the court granted summary judgment in favor of certain plaintiffs, but denied summary judgment with respect to other plaintiffs.

Additionally, the court explained that the language used in the subject grantor's deed “anticipated the future development of the land along Windmill Lane, and that his purpose in establishing a perpetual 50-foot wide easement was to ensure that subsequent property owners could access Further Lane.” The court noted that absent from the subject deed was any language that restricted a subsequent property owner's “use of the private road to access only his or her respective parcel of land.” Rather, the deed described the private road “as a common driveway for the benefit of the 'owner or owners of the premises herein conveyed or any part thereof, and the owner or owners of the other premises of (grantors) on the west.'”

Thus, the court held that the Windmill Lane “easement appurtenant passed to subsequent owners of the dominant estates along Windmill Lane, and no evidence has been submitted by (a defendant) demonstrating that such easement has been extinguished in so far as it passes over the (the defendant's property).” The court also found that since a defendant's property “is benefitted by an express easement over the pedestrian path to the Atlantic Ocean beach,” and no issue of fact as to such easement had been raised, the defendant's motion for summary judgment dismissing the Shumans' cross claim for declaratory relief was granted. Since the gate and the gabion erected in the pedestrian easement area had been removed, the court denied the motion for injunctive relief.

Comment: The subject case illustrates, inter alia, that prescriptive easement cases will often be decided based on the quality of the factual evidence. Developing evidence as to the use of an easement over a ten-year period and documentation that may go back decades, may present several challenges. People with direct knowledge may have died or relocated. Additionally, because of age or illness, recollections may be less than clear.

Trust v. Roskell, Sup. Ct., Suffolk Co., Index No. 13-14535, decided Sept. 18, 2018, Martorana, J.

Scott E. Mollen is a at partner at Herrick, Feinstein.