Spiegel v. Ferraro

• Decision Date: 06 June 1989
• Citation: 543 N.Y.S.2d 15,73 N.Y.2d 622,541 N.E.2d 15
• Parties: , 541 N.E.2d 15 Jerry SPIEGEL, Respondent, v. Stephan P. FERRARO et al., Defendants, and Ernie's Auto Body, Inc., Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 15

543 N.Y.S.2d 15

73 N.Y.2d 622, 541 N.E.2d 15

Jerry SPIEGEL, Respondent, v. Stephan P. FERRARO et al., Defendants and Ernie's Auto Body, Inc., Appellant.

Court of Appeals of New York.

June 6, 1989.

William C. Donnino, Syosset, and Peter Panaro, Massapequa, for appellant.

Gerald P. Rosenberg, for respondent.

OPINION OF THE COURT

ALEXANDER, Judge.

Where an easement has been definitively located and developed through use, there is no requirement that its owner demand the removal of obstructions blocking the easement before it may be extinguished by adverse possession. A use of an easement which is exclusive, open and notoriously hostile to the interests of the owner commences the running of the prescriptive period and the user may extinguish the easement if that use continues uninterrupted for a period of 10 years. Defendants having demonstrated that these requirements of adverse possession have been fulfilled, the order of the Appellate Division must be reversed.

I

In 1954, Alfred, Louis and Michael Masone sold a portion of their property to Nassau Farmers Market, Inc., together with a nonexclusive easement of ingress and egress over their retained property affording access to Broadway, the road adjoining the eastern border of the property. The western border of the conveyed parcel abuts Bloomingdale Road. In 1970, this parcel was conveyed to the plaintiff, Jerry Spiegel, along with the easement. In 1964, the grantor's retained parcel was conveyed to Frank Boni and Michael Pavone who in 1982 conveyed the parcel to defendants Nicholas and Stephan Ferraro. Boni and Pavone leased the premises to defendant Ernie's Auto Body, Inc. (Ernie's) in 1966 and in 1982, Ernie's renewed that lease with the Ferraros.

Before 1958, a solid chain link fence was erected along the common boundary line between the two parcels and plaintiff installed a gate at the point where the easement abuts his property. Upon commencing its tenancy in 1966, however, Ernie's installed two gates at various points over the easement and held the only keys to the gates. Ernie's also regraded the easement, installed lights around it, and had guard dogs patrol its premises (including the easement) at night. Additionally, from 1966 to the present, Ernie's has parked wrecked cars over the easement and, as Supreme Court found, plaintiff has not driven a car over the easement since that time.

In 1977, plaintiff demanded that Ernie's remove the obstructions blocking plaintiff's use of the easement and, in 1982, commenced this action to permanently enjoin Ernie's from obstructing the easement. After a nonjury trial, Supreme Court dismissed the complaint and vacated the easement, holding that Ernie's had extinguished the easement by adverse possession in 1976, after 10 years of continuous and exclusive use. The Appellate Division reversed, holding that the easement had not been extinguished by adverse possession in 1976 because there had been no demand by plaintiff that the obstructions on the easement be removed until 1977. That court reasoned that because plaintiff had had no occasion to use the easement, which was created by grant, Ernie's use of the easement could not be deemed adverse to plaintiff until the demand was made. The Appellate Division also concluded that plaintiff's claim was not time barred because the cause of action accrued when plaintiff made the demand in 1977. Thus that court remitted to Supreme Court for entry of judgment in favor of plaintiff. ^* We now reverse and reinstate the judgment of Supreme Court.

II

We have long recognized that an easement created by grant may be extinguished by adverse possession (Woodruff v. Paddock, 130 N.Y. 618, 29 N.E. 1021 [owner of servient parcel extinguished easement by adverse use]; see also, Gerbig v. Zumpano, 7 N.Y.2d 327, 330, 197 N.Y.S.2d 161, 165 N.E.2d 178; Hennessy v. Murdock, 137 N.Y. 317, 326, 33 N.E. 330; Snell v. Levitt, 110 N.Y. 595, 602, 18 N.E. 370). As with any adverse possession claim, the party seeking to extinguish the easement must establish that the use of the easement has been adverse to the owner of the easement, under a claim of right, open and notorious, exclusive and continuous for a period of 10 years (see, Brand v. Prince, 35 N.Y.2d 634, 636, 364 N.Y.S.2d 826, 324 N.E.2d 314; Belotti v. Bickhardt, 228 N.Y. 296, 127 N.E. 239; RPAPL 501, 521; compare, Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 513, 109 N.E.2d 600 [requirements for acquisition of an easement through adverse use]; Caswell v. Bisnett, 50 A.D.2d 672, 673, 375 N.Y.S.2d 218; see generally, 3 Powell, Real Property, Easements and Licenses p 424; Restatement of Property § 506 [1944]. Thus "an easement may be lost by adverse possession if the owner or possessor of the servient estate claims to own it free from the private right of another, and excludes the owner of the easement, who acquiesces in the exclusion for [the prescriptive period]" (Woodruff v. Paddock, 130 N.Y., at 624, 29 N.E. 1021,supra ).

A narrow exception to this general rule has evolved with regard to the extinguishment of easements that have not been definitively located through use. In Smyles v. Hastings, 22 N.Y. 217, 224, we held that an easement that was not so definitively located through use and which lead to a "wild and unoccupied" parcel, was not extinguished by adverse possession because the owner of the easement had had no occasion to assert the right of way during part of the prescriptive period. Relying on Smyles, the Appellate Division has held that such "paper" easements may not be extinguished by adverse possession absent a demand by the owner that the easement be opened and a refusal by the party in adverse possession (Castle Assocs. v. Schwartz, 63 A.D.2d 481, 490, 407 N.Y.S.2d 717; see also, Powlowski v. Mohawk Golf Club, 204 App.Div. 200, 198 N.Y.S. 30; Consolidated Rail Corp. v. MASP Equip. Corp., 109 A.D.2d 604, 606, 486 N.Y.S.2d 4, affd. on other grounds 67 N.Y.2d 35, 499 N.Y.S.2d 647, 490 N.E.2d 514). In Castle, the court held that an easement created by grant as the result of a subdivision, but never located, was not extinguished by adverse possession because the owner of the easement had never demanded that the easement be opened.

The theory underlying the exception is that easements not definitively located and developed through use are not yet in functional existence and therefore the owner of the easement could not be expected to have notice of the adverse claim until either the easement is opened or the owner demands that it be opened. It is only at such point, therefore, that the use of the easement by another is deemed to be adverse to the owner and the prescriptive period begins to run (Powlowski v. Mohawk Golf Club, 204 App.Div., at 204, 198 N.Y.S. 30, supra ). So understood, the exception is consistent with the general theory of adverse possession--"that the real owner may, by unequivocal acts of the usurper, have notice of the hostile claim and be thereby called upon to assert his legal title" (Monnot v. Murphy, 207 N.Y. 240, 245, 100 N.E. 742 [citation omitted]; see also, Hinkley v. State of New York, 234 N.Y. 309, 317, 137 N.E. 599).

The ...