Beutler v. Maynard
| Decision Date | 27 March 1981 |
| Parties | Susanne M. BEUTLER, Martha J. Randazzo, Lawrence R. Hause and Janet M. Hause, Appellants, v. Roger MAYNARD and Louise Scott, Respondents. |
| Court | New York Supreme Court — Appellate Division |
Raymond W. Bulson, Portville, for appellants.
Shane & Franz, by David Brautigam, Olean, for respondents.
Before DILLON, P. J., and CARDAMONE, SIMONS, DOERR and MOULE, JJ.
Plaintiffs seek to enjoin defendants from interfering with access to their cabins over a right of way known as Linwood Drive Extension which runs northeasterly from Linwood Drive, extending approximately 1,000 feet through defendants' property to a 181-acre tract of land upon which plaintiffs' cabins are located. The extension is a well-delineated right of way marked by fence lines along each of its sides. One of the cabin sites is owned by plaintiffs Beutler and Randazzo; the other is owned by plaintiffs Hause. The trial court dismissed the complaint upon its finding that plaintiffs had not established a prescriptive easement.
Although the entire tract was acquired by Kenneth and Donna Reiss in 1959, the cabin site parcels must be separately considered. The Beutler-Randazzo cabin was built in 1962 by people named Lamson immediately following their purchase of the site from the Reisses. The Lamsons regularly traveled over the extension to gain access to the cabin on summer weekends during the period of their ownership from 1962 until 1972 when they reconveyed the site to the Reisses. Thereafter the cabin was briefly subject to a land contract with people named Gallion and in 1974 it was conveyed by the Reisses to plaintiffs Beutler and Randazzo who made regular summertime use of the extension and of the cabin until defendant Maynard closed off the right of way in September 1978.
Construction of the cabin of plaintiffs Hause was commenced by one Bolduc who purchased the cabin site from the Reisses in 1963 and who reconveyed it, together with the unfinished cabin, to the Reisses in 1970. There is no testimony in the record as to when construction of the cabin was commenced and Bolduc testified that he visited the property on a very limited basis and only during two or three years of the several years of his ownership. The Reisses conveyed the site to the Humphreys who occupied the cabin as a permanent residence from 1971 to 1978 but the record is devoid of testimony as to use of the extension by the Humphreys. In 1978 the parcel was reacquired by Kenneth Reiss who conveyed the same to plaintiffs Hause in July 1978. The Hauses visited the cabin three times before defendant Maynard denied access along the extension.
In dismissing the complaint after a nonjury trial, the court found that plaintiffs had failed to establish continuous use and had failed to meet their burden to prove that the use was without permission of defendants.
To establish a prescriptive easement one must prove by clear and convincing evidence (Pro-Fac Coop. v. Baltimore & Ohio R. R. Co., 36 A.D.2d 441, 321 N.Y.S.2d 208) that the use was "adverse, open and notorious, continuous and uninterrupted for the prescriptive period" (Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512, 109 N.E.2d 600). A showing that the use was open and notorious, continuous and uninterrupted for the required time gives rise to a presumption that the use was adverse, and the burden is upon the servient landowner to prove that the use was by permission (Di Leo v. Pecksto Holding Corp., supra; Pirman v. Confer, 273 N.Y. 357, 7 N.E.2d 262; Denniston's Crossing v. State of New York, 76 A.D.2d 988, 429 N.Y.S.2d 304).
Here, defendants having offered no proof that the use was permissive and plaintiffs having demonstrated that the use was open and notorious, it follows that if the use was continuous and uninterrupted for the prescriptive period, defendants failed to rebut the presumption of adverse use.
A principal purpose served by the requirement of continuous use is to give notice to the...
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