BERETZ JR. v. Diehl

• Decision Date: 27 February 2003
• Citation: 755 N.Y.S.2d 122,302 A.D.2d 808
• Court: New York Supreme Court — Appellate Division
• Parties: JOSEPH BERETZ, JR., et al., Appellants,<BR>v.<BR>LISA A. DIEHL, as Executor of MICHAEL STRYKIEWICZ, Deceased, Respondent.

302 A.D.2d 808

755 N.Y.S.2d 122

JOSEPH BERETZ, JR., et al., Appellants,

v.LISA A. DIEHL, as Executor of MICHAEL STRYKIEWICZ, Deceased, Respondent.

Spain, J.

Decided February 27, 2003.

Cardona, P.J., Mercure, Carpinello and Kane, JJ., concur.

Spain, J.

Plaintiffs are the owners of a land-locked parcel of real property containing approximately 73 acres located in the Town of Middleburgh, Schoharie County, which abuts an 88-acre parcel owned by Michael Strykiewicz (hereinafter defendant).^[1] Plaintiffs acquired their property in 1998 from their father, Joseph Beretz, Sr. (hereinafter Beretz), who took title in 1969. These contiguous parcels were first created in 1862 when Perlee Barton subdivided a single parcel, selling the northern half—the property now owned by plaintiffs (hereinafter the northern parcel)—and retaining the southern parcel to which defendant ultimately took title (hereinafter the southern parcel). The northern parcel does not contain any frontage on a public road or any easements of record for ingress and egress. Instead, plaintiffs (and Beretz before them) accessed the northern parcel for logging and recreational use from the south by using a dirt roadway (hereinafter the roadway) which runs from Huntersland Road over the southern parcel and on through the northern parcel.

With plans to market the northern parcel for sale, plaintiffs commenced this action seeking a declaration that an easement exists over the roadway in their favor either by prescription or by implication. Defendant moved for summary judgment and plaintiffs cross-moved for summary judgment. Supreme Court (Lamont, J.) denied both motions on the basis that material triable issues of fact remained in dispute. Following a bench trial, Supreme Court (Hughes, J.H.O.) dismissed the complaint, determining that plaintiffs had failed to establish an easement over the roadway on either of the two theories advanced at trial. Plaintiffs appeal from both the order denying their cross motion for summary judgment and the judgment dismissing their complaint.^[2]

We agree with Supreme Court's resolution of the issues presented and, therefore, affirm its judgment. Testimony at trial established that when Beretz purchased the northern parcel in 1969, the roadway was impassible and he accessed it on foot for hunting. In 1980, Beretz improved the roadway by clearing saplings and bulldozing. Thereafter, he and plaintiffs after him used the roadway to log the property every 12 to 15 years and, on occasion, to collect firewood or go four-wheeling. Through the testimony of a licensed surveyor, plaintiffs also introduced evidence which supported the conclusion that the roadway existed prior to Beretz taking title. Specifically, the surveyor testified that a stone wall running along the roadway on one side and a barbed wire fence—which trees had grown around—on the other side indicated that the roadway had been in existence for some time. In addition, the surveyor stated that an 1836 survey of the relevant area contained two dotted lines, which could indicate a road or pathway running north/ south over the southern parcel in the same manner as the roadway. Finally, plaintiffs introduced evidence to show that the contours of the northern and southern parcels made the roadway the only feasible access to the northern parcel.

Turning first to the cause of action for easement by prescription, it was plaintiffs' burden to demonstrate "by clear and convincing evidence that their use of the roadway on the property at issue was for the benefit of their property and was adverse, open and notorious, continuous and uninterrupted for the [10-year] prescriptive period" (Van Deusen v McManus, 202 AD2d 731, 732; see RPAPL 311; Aubuchon Realty Co. v Cohen, 294 AD2d 738, 739). Fatal to plaintiffs' claim is the principle that proof of permissive use will negate the adverse or hostile element of the test and defeat the creation of an easement by prescription (see Albright v Beesimer, 288 AD2d 577, 579). Here, defendant testified that he gave plaintiffs and Beretz permission to use the roadway for access several times, including in 1980 when Beretz approached him requesting permission to create a road over the southern parcel to access the northern parcel for logging, and defendant consented. Defendant further stated that between 1980 and 1997—when Beretz (assisted by plaintiffs) next logged the property—the road became overgrown and washed out and he again gave them permission to use the road before they reopened it in 1997. These assertions were not directly refuted at trial. In addition, evidence exists that prior to asserting an easement as of right, plaintiffs made an offer to purchase an easement over the...