October 24, 2018

In Auswin Realty Corporation v. Klondike Ventures, Inc., 163 A.D.3d 1107 (2018), Plaintiff brought an action against Defendants claiming that Defendants were trespassing over their property and removed/cleared trees without permission.  An approximately one-half-mile long trail on the Defendant’s property encroached onto Plaintiff’s property in two locations to avoid a rock formation and large tree stump, respectively. Defendant’s family testified that the trail was regularly used on weekends from 1982 until 2002 during the hunting season to access a tree stand located at the end of the trail.  The trail was also maintained and cleared by Defendants.  Evidence also showed that the Defendants recently widened the trail from 8 feet to 14 feet in some areas.

The Supreme Court determined that the Defendants had a prescriptive easement over the two portions of the trail encroaching on Plaintiff’s property.  The Court found that Defendants proved that the use of the trail was continuous for at least ten (10) years and that the Plaintiff failed to meet its burden of establishing that such use was permissive.

The Appellate Division, Third Department upheld the Supreme Court’s decision except that the Third Department limited the width of the prescriptive easement to eight feet (i.e. the original width of the trail before the Defendants widened it) and limited the easement to the extent of prior use.  The Defendants were directed to restore the width of the trail.

For more information about prescriptive easements and other real estate title matters in New York, please click here.

For general information about the firm, including our contact information, please click here.

The Law Offices of Keith R. Betensky, Esq.
The Empire Building
26 Village Green, Suite 4
P.O. Box 22
Bedford, New York 10506-0022
(914) 338-8050
keith@betenskylaw.com
www.betenskylaw.com