Zutt v. State
Citation | 856 N.Y.S.2d 245,50 A.D.3d 1133,2008 NY Slip Op 04082 |
Decision Date | 29 April 2008 |
Docket Number | 2007-04593. |
Parties | WILLIAM A. ZUTT et al., Respondents, v. STATE OF NEW YORK, Appellant. |
Court | New York Supreme Court Appellate Division |
Ordered that the judgment is affirmed, with costs.
An easement for drainage of surface water may be acquired by prescription, under a claim of right, by means of the use of a ditch for that purpose on the subject property for the requisite period (see Village of Schoharie v Coons, 34 AD2d 701, 702 [1970], affd 28 NY2d 568, 569 [1971]; Kusmierz v Baan, 144 AD2d 829, 830 [1988]; Town of Hamburg v Gervasi, 269 App Div 393 [1945]). However, in order for such use of another's property to ripen into an easement by prescription, the party asserting the easement must make a showing, by "clear and convincing evidence" (Greenhill v Stillwell, 306 AD2d 434, 435 [2003]), that the use of the ditch was adverse, open and notorious, and continuous for the prescriptive period (see Vinciguerra v State of New York, 262 AD2d 743, 745 [1999]; Torre v Meade, 226 AD2d 447, 447-448 [1996]; Van Deusen v McManus, 202 AD2d 731, 732 [1994]; 2239 Hylan Blvd. Corp. v Saccheri, 188 AD2d 524, 525 [1992]). In the case of a prescriptive easement, the right acquired is measured by the extent of the use (see J.C. Tarr, Q.P.R.T. v Delsener, 19 AD3d 548, 551 [2005]; Mandia v King Lbr. & Plywood Co., 179 AD2d 150, 157 [1992]). Applying these principles, the defendant could acquire an easement only equal in width to that portion of the subject property actually used during the prescriptive period. Since the defendant failed to show what portion of the claimants' land was actually used during the prescriptive period, it failed to establish its entitlement to a prescriptive easement by clear and convincing evidence (see Greenhill v...
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...must make a showing ‘by clear and convincing evidence’ that the use” was adverse, open, notorious, and continuous. Zutt v. State of N.Y., 50 A.D.3d 1133, 1133, 856 N.Y.S.2d 245 (2d Dep't 2008). As the Town Defendants have not put forth any “clear and convincing evidence,” such argument is n......
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Zutt v. State
...The State appealed to this Court, and we affirmed the judgment entered upon the decision in Zutt I ( see Zutt v. State of New York, 50 A.D.3d 1133, 856 N.Y.S.2d 245). Meanwhile, after Zutt I, but prior to the entry of the final judgment, the Zutts wrote to the State, requesting that it take......
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Mentiply v. Foster
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