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DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT).

The Third Department determined defendant (TRD) had a prescriptive easement over two portions of a trail that crossed over onto plaintiff’s land to go around obstacles. Seasonal use of the trail for hunting was deemed continuous use. The fact that the trail was not used for five years when the party (Cisgay) who testified on behalf of the defendant was in the service (after 20 years of continuous use of the trail) did not constitute abandonment. The trail had been widened by a forester for logging. Supreme Court should have ordered defendant to restore those portions of the trail that are on plaintiff’s land to the original width:

Contrary to plaintiff’s argument, when we give the requisite deference to Supreme Court’s factual findings and credibility determinations … , we find that Csigay’s unequivocal testimony with regard to his family’s use of the entire skidder trail from 1982 to 2002 established TRD’s claim for a prescriptive easement over the two crossover areas … . The element of continuous use may be established where, as here, a party’s predecessors used the property for the requisite 10 years … . Although TRD’s predecessors used the property primarily during the hunting season, such use did not negate the existence of a prescriptive easement because TRD established that the use was “continuous and uninterrupted and commensurate with appropriate seasonal use” … . Further, in the absence of sufficient evidence that plaintiff and TRD’s predecessors shared a relationship “of neighborly cooperation and accommodation” … , we agree with the court’s determination that plaintiff failed to meet its burden of establishing that the continuous use was permissive … . Although the parties agree that the skidder trail was not used from 2002 to 2007, nonuse of an established easement does not equate to abandonment… . Here, the record reveals no intent to abandon the skidder trail, only that Csigay stopped using it due to his military service. Auswin Realty Corp. v Klondike Ventures, Inc., 2018 NY Slip Op 04997, Third Dept 7-5-18

​REAL PROPERTY (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/EASEMENTS (PRESCRIPTIVE EASEMENTS, DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))/PRESCRIPTIVE EASEMENTS (DEFENDANT DEMONSTRATED CONTINUOUS SEASONAL USE OF A TRAIL WHICH CROSSED OVER ONTO PLAINTIFF’S LAND (TO GO AROUND TWO OBSTACLES) FOR 20 YEARS, DEFENDANT HAD A PRESCRIPTIVE EASEMENT OVER THE TWO CROSS-OVER PORTIONS OF THE TRAIL (THIRD DEPT))

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