Kopp v. Niemetz , 204 N.Y.S.2d 561 ( 1960 )

Appeal by the defendants Niemetz from a judgment of the Supreme Court, Queens County, entered May 1, 1959, after trial before an Official Referee, declaring that plaintiffs’ predecessor in title, the late Clare Kopp, (who originally was the plaintiff in the action and who died during the pendency of this appeal) has a driveway easement over a portion of the land of the defendants Niemetz, enjoining said defendants from interfering with such easement, and directing them to remove a fence which they have erected bn the driveway along the boundary line of their property. Judgment reversed on the law and the facts, with costs, and complaint dismissed, with costs. Insofar as finding of fact number 6 is inconsistent herewith, it is reversed. The parties to this appeal are owners' of adjoining properties, on each of which is a dwelling with a garage in the rear. Between the houses is a paved driveway 17.32 feet in width, of which 7.04 feet is on plaintiffs’ property and 10.48 feet is on the land of the defendants Niemetz. In our opinion, the evidence was insufficient to establish that the use of the disputed portion of the driveway by the present plaintiffs’ predecessors in title was adverse and under claim of right against the owners of such portion for 15 years or more (cf. Norwich v. Edelman, 204 Mise. 915, 917, and cases cited). In the absence of proof of reciprocal adverse user by the adjoining landowners, the principle invoked by the learned Referee (ef. T)e Forrest v. Bunnie, 201 Mise. 7, affd. 280 App. Div. 1035; Spahn v. Stegemann, 120 N. Y. S. 2d 42; Hildreth v. Goodell, 286 App. Div. 278) has no application. Nolan, P. J., Ughetta, Christ, Pette and Brennan, JJ., concur.