PRESCRIPTIVE EASEMENT

A “prescriptive easement” is a permanent legal right to use the real property belonging to another person, and is a form of “adverse possession.”

Bedik Corp. v. Herrick Rd. Holdings, NYLJ 1/16/19, Date filed: 2018-12-14 , Court: Supreme Court, Nassau, Judge: Justice Leonard Steinman, Case Number: 004517/2016:

"The concept of fair notice to a property owner of another’s adverse use underlies the requirement that an easement by prescription have determinate boundaries. To satisfy the open and notorious element of a prescriptive easement claim, a party’s use of another’s land should be substantial and reasonably definite. Restatement (Third) of Property (Servitudes) §2.17 comment h at 274 (2000). “Claims for rights of way must be based on uses that are substantially confined to a regular route.” Id. (emphasis added). Equity also dictates that the acquisition of a right to utilize another’s land be limited at least to the actual past use made of such land. There are few cases in New York discussing the scope of a prescriptive easement and none similar to the facts before the court. In Patel v. Garden Homes Management Corp., 156 A.D.3d 807 (2d Dept. 2017), the court held that the right acquired by prescription is commensurate with the right enjoyed by the party obtaining the easement and that the defendant could obtain a prescriptive easement only equal in area to that portion of the plaintiff’s property actually used. Id. at 809; see also Vitiello v. Merwin, 87 A.D.3d 632 (2d Dept. 2011); Thury v. Britannia Acquisition Corp., 19 A.D.3d 586 (2d Dept. 2005). But these cases do not squarely address the situation where the purpose of the claimed easement remains the same but there are slight deviations in the path used over the servient estate.

Cases from other jurisdictions have addressed this issue in cases remarkably similar to this one. In California, its Supreme Court held that slight deviations from an accustomed route will not defeat an easement. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564 (1984). In Warsaw, the plaintiff and defendant owned adjoining commercial parcels purchased from the same owner. Trucks servicing the plaintiff’s commercial building used a portion of the defendant’s vacant lot to enter, turn, park and leave the area of plaintiff’s loading dock. The defendant then constructed a warehouse partially on the area of the vacant lot needed for plaintiff’s trucks to maneuver into its loading bays, and plaintiff sought injunctive relief. The trial court granted the injunction, finding that the truck drivers had followed a definite course and pattern, with slight deviation.

The Supreme Court affirmed the trial court’s ruling, notwithstanding that California law requires that the existence of a prescriptive easement be shown by a definite and certain line of travel. In affirming, the Supreme Court explained:

The evidence revealed that truck drivers who were making deliveries to or receiving goods from plaintiffs used the parcel to approach the building, swing around and back into plaintiffs’ loading dock. Since the drivers varied in their abilities, the space required to complete this manuever [sic] was variable. No two drivers followed precisely the same course, but all used the parcel for the same purpose—to turn their vehicles so they could enter plaintiffs’ loading docks. The Supreme Court therefore held that the inevitable differences in the paths utilized by the drivers did not defeat the prescriptive easement claim because a definite pattern was followed for a similar purpose.

In Community Feed Store, Inc. v. Northeastern Culvert Corporation, 151 Vt. 152 (1989), the Vermont Supreme Court came to a similar conclusion when faced with nearly identical facts. In that action, the plaintiff sought a prescriptive easement over vacant land of its neighbor used by its customers and supplier delivery trucks for turning and backing into its mill’s loading docks. The trial court denied plaintiff’s claim for a prescriptive easement, in part because the plaintiff purportedly failed to prove what portion of the defendant’s land was used by the vehicles.

The Vermont Supreme Court reversed, finding that the extent of the use “must be proved not with absolute precision, but only as to the general outlines consistent with the pattern of use throughout the prescriptive period.” Id. at 158. The Supreme Court’s analysis persuasively demonstrated that its conclusion was consistent with similar cases from other jurisdictions and the Restatement of Property. See, e.g., O’Brien v. Hamilton, 15 Mass. App. Ct. 960 (1983)(extent of easement is measured by general pattern formed by the adverse use); Restatement of Property §477 (1944); see also Ventres v. Goodspeed Airport, LLC, 275 Conn. 105, 124 (2005)(use leading to prescriptive easement must define its bounds with reasonable certainty) and cases cited therein in fn. 23; Concerned Citizens of Brunswick County Taxpayers Ass’n. v. State ex rel. Rhodes, 329 N.C. 37 (1991)(use of roadway need not be confined to a definite and specific line of travel but rather there must be a “substantial identity” of traveled way claimed).

Irrespective of whether New York were to adopt the “pattern of use,” “substantial identity,” or “definite line of travel” test, Bedik has set forth sufficient evidence to establish its right to the claimed easement. It produced an eyewitness attesting to the consistent pattern of travel utilized by the delivery trucks with only slight deviations and evidence delineating this pattern was introduced.

For sure, Bedik does not help its cause by submitting diagrams with varying descriptions of its claimed easement. But the discrepancies—while significant to HRH because every foot of property burdened could affect its desire to proceed with submitted and approved development plans—are not substantial given the overall size of the vacant lot in question. Furthermore, some discrepancies were explained by Spinello as emanating from his inclusion in certain diagrams of additional space to provide a cushion for less-skilled drivers and for convenience. This court will not include such additional space as part of the prescriptive easement. While some variation of the trucks’ actual use of the vacant lot is explainable and acceptable, the touchstone remains that the easement is limited to actual use. Furthermore, given the varying paths used by the trucks, equity dictates in these circumstances that the right-of-way be limited to the area necessary for the purpose of the easement. See Ledlley v. D.J. & N.A. Management, Ltd., 228 A.D.2d 482 (2d Dept. 1996). Spinello testified that he observed trucks successfully accessing and leaving the loading bays utilizing the easement area reflected in Exhibit I. Trucks were also able to successfully navigate the area utilizing an eastern boundary of 78 feet as reflected in Exhibit D. These are the least intrusive uses of HRH’s land and, therefore, are the appropriate dimensions of the easement. Plaintiff is to submit a judgment on notice."