De Forrest v. Bunnie

• Decision Date: 13 August 1951
• Parties: James P. De Forrest et al., Plaintiffs,<BR>v.<BR>Andrew J. Bunnie, Defendant.
• Court: New York Supreme Court

201 Misc. 7

James P. De Forrest et al., Plaintiffs,

v.Andrew J. Bunnie, Defendant.

August 13, 1951.

Albert L. Lawrence for plaintiffs.

Andrew J. Moore for defendant.

SEARL, J.

The present discussion relates to what may be considered "hostility" as a necessary factor in obtaining a prescriptive right to use a neighbor's premises.

Plaintiffs, husband and wife, on April 1, 1946, acquired title to a one-family house on a lot forty feet in width on the westerly side of Renwick Avenue, in the village of Herkimer, New York. Their predecessors in title, James W. Cogovan and wife, acquired title to these premises on April 1, 1920.

A similar adjoining lot to the north, on which also stood a one-family house, was purchased by defendant. His deed was dated June 2, 1917, and recorded April 23, 1921.

To the rear of the Cogovan property is a one-car garage located at the northwest corner of the lot. To the rear of defendant's property is a three-car garage. In 1921 defendant suggested to Cogovan that the latter move his garage from the southwest corner of his lot to the northwest corner; that they make and use a common driveway from the street and provide a space at the rear of both dwellings sufficiently wide to turn their cars conveniently. Cogovan's dwelling was within three feet of his north line. Two or three feet of the Cogovan property, and some seven to eight feet of defendant's land, along the south side, was adopted as a common driveway to the rear. Each paid one half the cost of cutting down the curb and laying a concrete apron, some ten feet wide, at the curb. The south edge of this cut and apron was opposite a point two-three feet south of an extension of Cogovan's north line and the north edge, some seven feet north of the common line. Cogovan also altered his property so that coal or fuel could be delivered to the northerly side of his house by use of this driveway.

From 1921 until plaintiffs took title from Cogovan, in 1946, this common and well-defined driveway was used by Cogovan or his tenants and by defendant. After plaintiffs took title the evidence discloses both plaintiffs and defendant continued to use the driveway. Both neighbors were on good terms. In fact, plaintiff, James P. DeForrest, worked for defendant, the latter being in the trucking business. Around 1949, DeForrest ceased working for defendant. Then the situation changed. Defendant constructed a wooden fence through the common driveway, on his own side of the line; plaintiff took it down to permit entrance to the rear of his property. Then defendant erected a cement curbing, or wall, within a few inches of the line from the sidewalk westerly to the rear of plaintiffs' dwelling.

Immediately this action started in which plaintiffs ask injunctive relief restoring the use of the driveway claimed to have been established by prescription, asking that defendant be directed to remove the concrete obstruction.

In addition to a general denial the answer alleges that any use of defendant's property was with permission and under an agreement made with the original owner, Cogovan, to effect that if the latter ever sold, the permissive use was to terminate. On the trial of the action, Cogovan strenuously denied such an agreement, stating that he and defendant jointly contributed a share of the land; that both maintained and equally shared the expense of laying the concrete apron. The court accepts the version as related by Cogovan. It is not reasonable that Cogovan would move his garage from the south side of his lot to the north side, with an understanding that entrance to, and use of, the garage would be cut off in event he sold his property. The narrow space between the Cogovan south line, where an embankment falls off sharply to the adjoining property, and Cogovan's house, was just sufficient at that time to allow clearance of the average pleasure car. However, plaintiff now owns a Ford truck eight feet in width. He cannot construct a driveway on the south side of sufficient width on his own land to permit clearance. He is confronted with a present necessity.

In arriving at the conclusion the court has reached, neither the question of claim of right, exclusiveness, continuity, or uninterrupted use, knowledge or acquiescence by the owners, requires any discussion — those requisites necessary to acquire a prescriptive right. The only remaining requisite is that pertaining to hostility or adverse use.

Reciprocal use of a strip along a common boundary line, comprised of land on both sides, pursuant to an oral or implied agreement, and use as a drive, or passageway, for a period of fifteen years may ripen into an easement. Each owner, by the use of his adjoining neighbor's portion of the way, asserts an adverse right in the portion of the way lying on the other's land. (Nicholls v. Wentworth, 100 N.Y. 455, 461; Townsend v. Bissell, 4 Hun 297; Johnson v. Whelan, 171 Okla. 243, Note, 98 A. L. R. 1098.)

It is true that the mere permissive use over the land of another will never ripen into an easement, still, one who joins his neighbor in the construction and use of an improved and recognized way along both sides of the common boundary line has given his neighbor more than a mere license.

By this reciprocal use the adverse or hostile requirement is inferred. Such a conclusion may appear inconsistent when each is on good terms with his fellow neighbor. It reasonably might well appear incongruous that one neighbor greet the other with a cheery "Good morning" and still have hostility exist. However, hostility as an element of adverse possession necessary to create an easement or prescriptive right does not thereby...