Armour v. Marino , 527 N.Y.S.2d 632 ( 1988 )

— Kane, J. P.

In 1924, Harry J. Ferguson decided to subdivide certain lake front property he owned in Otsego County into 36 lots. He hired defendant Vito N. Molinari, a land surveyor, to prepare the proposed subdivision map. The map designated a right-of-way intended by Ferguson for the prospective lot purchasers’ common use. Four of the lots were conveyed to Molinari and five of the lots were conveyed to Thomas and Marie Kalligan. Each such conveyance granted a right-of-way over a 15-foot strip of land to be used in common with other lot owners, on the express condition that all gates and bars across the same shall be kept closed. Thereafter, in 1949, Ferguson’s successor in title, Robert J. Wilson, conveyed a lot to defendant Mahlon Olmstead which omitted specific reference to the 15-foot strip but did state, "Together with the appurtenances and all the estate and rights of the party of the first part in and to said premises.” In 1961, plaintiffs acquired the Kalligans’ property by inheritance. Defendant Calabro & Hill Properties, Inc., Wilson’s successor, who owned the remaining lands of the common grantor, resubdivided its lands. Thereafter, Calabro & Hill conveyed a lot to Molinari and a lot to defendants Joseph, Mary and Rudolph Marino. Included in the parcel to the Marinos was the 15-foot strip as a right-of-way for ingress and egress to the lots.

The 15-foot strip was never used to gain access to lots east of plaintiffs’ lands until 1984, when the Marinos attempted to use the right-of-way. Plaintiffs had, however, cultivated and fenced the 15-foot strip and refused to permit the Marinos to use the right-of-way. The Marinos then hired a bulldozer to cut a 15-foot path through plaintiffs’ garden and trees. As a result, plaintiffs commenced the instant suit. In their complaint, plaintiffs allege, in their first cause of action, that they acquired title to the portion of the 15-foot strip bordering their lots by adverse possession for more than 10 years, commencing in 1961. The Marinos then brought a motion for partial summary judgment, which motion was granted by Supreme Court to the extent of dismissing the first cause of action. This appeal by plaintiffs ensued.

Supreme Court’s decision should be affirmed. For a party to successfully assert title to property by way of adverse possession, the possession must be actual, hostile, under a claim of right, open, notorious, exclusive and continuous (Castle Assocs. v Schwartz, 63 AD2d 481). Moreover, in a case such as the instant situation, where an easement has been created by grant but has not been used, even if an owner of the servient tenement has obstructed the easement, this does not necessarily establish adverse possession. Such a use will not be deemed adverse "until (1) such time as the need for the right of way arises, (2) a demand is made by the easement owner that the way be opened, and (3) the servient tenant refuses” (Filby v Brooks, 105 AD2d 826, 828, affd 66 NY2d 640). These requirements have simply not been satisfied in this case. Here, the right-of-way was not sought to be used until 1983, when the Marinos became lot owners and demanded that it be opened. Plaintiffs have further offered no support for their assertion that in 1972 they informed Olmstead that he could not use the right-of-way. Additionally, insofar as plaintiffs’ maintenance of a fence is concerned, the fencing was constructed at the time of the grant of the easement with the right-of-way remaining available on the condition that the gates be kept closed. Therefore, this fails to support plaintiffs’ claim of adverse possession. Thus, in our view, Supreme Court correctly concluded that plaintiffs could not, as a matter of law, prevail on the issue of adverse possession. Accordingly, the court properly dismissed the first cause of action.

Order affirmed, without costs. Kane, J. P., Weiss and Harvey, JJ., concur.