You are here: / / BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO...
, ,

BECAUSE THE INITIAL USE OF THE ROADWAY WAS PERMISSIVE, AND THERE WAS NO HOSTILE USE FOR THE REQUIRED TEN YEARS, THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE NOT MET; HOWEVER BECAUSE THE INITIAL USE WAS PERMISSIVE AND CONTINUED FOR 50 YEARS, THE CRITERIA FOR AN EASEMENT BY ESTOPPEL WERE MET (THIRD DEPT).

The Third Department, reversing Supreme Court, determined that plaintiffs did not have a prescriptive easement over defendants’ properties, but did have an easement by estoppel. Because there was an agreement among the original owners of the three adjacent camps to construct, maintain and use a roadway providing vehicular access to all three camps, and because there had been no hostile use of the roadway for ten years, the requirements for a prescriptive easement were not met. However plaintiffs were entitled to an easement by estoppel. The court noted that the Statute of Frauds does not apply to an easement by estoppel:

[Re; a prescriptive easement] … [B]ecause plaintiffs’ predecessors’ use of the extension was permissive, the element of hostility was negated … . Therefore, no adverse use could have arisen until there was the assertion of a hostile right … , which, at the earliest, occurred in 2018. We are presented with a permissive use that did not ripen into a prescriptive one for the time required … .

Yet, these same facts establish plaintiffs’ entitlement to an easement by estoppel … . “An easement by estoppel may arise when, among other things, a party reasonably relies upon a servient landowner’s representation that an easement exists” … . The uncontested existence of the agreement between the parties’ predecessors for the construction and use of the extension, together with the time and expense of not only the initial construction but, also, the continued 50-year maintenance thereof, demonstrates that plaintiffs “undertook . . . action[s] to their detriment in reasonable reliance upon a representation that they held an easement” … . Sardino v Scholet Family Irrevocable Trust, 2025 NY Slip Op 02828, Third Dept 5-8-25

Practice Point: Consult this decision for clear illustrations of the criteria for a prescriptive easement and an easement by estoppel.

 

You might also like
THE CHARGES STEMMED FROM A DEMONSTRATION SPARKED BY THE POLICE KILLING OF GEORGE FLOYD; DEFENDANT THREW TWO MOLOTOV COCKTAILS TOWARD POLICE OFFICERS; THE EVIDENCE DEFENDANT ENGAGED IN “TERRORISM” WAS LEGALLY INSUFFICIENT; SENTENCE REDUCED (THIRD DEPT).
BY THE TIME OF SENTENCING FOR CONTEMPT FOR FATHER’S WILLFUL VIOLATION OF A SUPPORT ORDER, FATHER HAD PAID ALL THE ARREARS, FAMILY COURT SHOULD NOT HAVE ORDERED HIS INCARCERATION (THIRD DEPT).
SORA Determination without Board Recommendation Okay When Defendant Released Same Day as He Was Sentenced
Rules of Evidence Properly Relaxed to Allow Hearsay In Proceeding to Modify Guardian’s Power to Control the Social Environment of the Incapacitated Person
Equipment Leases Are Not “Securities” for Purposes of Tax Law
MISTRIAL BASED UPON DEFENSE COUNSEL’S CONFLICTS OF INTEREST WAS PROPERLY GRANTED WITH DEFENDANT’S CONSENT; DOUBLE JEOPARDY DID NOT ATTACH (THIRD DEPT).
THE SENTENCE AGREED TO IN THE PLEA BARGAIN AND IMPOSED BY THE COURT WAS ILLEGAL BECAUSE IT WAS LESS THAN STATUTORILY REQUIRED; THE SENTENCE WAS VACATED AND THE MATTER REMITTED TO GIVE DEFENDANT THE OPPORTUNITY TO WITHDRAW THE PLEA (THIRD DEPT).
Sales Rep Was an Employee Entitled to Unemployment Insurance Benefits

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

CONFINEMENT IN A RESIDENTIAL MENTAL HEALTH TREATMENT UNIT (RMHU) FOR 17 HOURS... DEFENDANT WAS ENTITLED TO THE ASSIGNMENT OF NEW COUNSEL BASED UPON COUNSEL’S...