You are here: / / A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT...
,

A DEEDED EASEMENT CAN ONLY BE CREATED WHEN THE GRANTOR OWNS THE DOMINANT AND SERVIENT PROPERTY; HERE THE CRITERIA FOR A DEEDED EASEMENT WERE NOT MET; BUT THE CRITERIA FOR A PRESCRIPTIVE EASEMENT WERE MET (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiffs did not demonstrate they had a deeded easement over the disputed land, but did demonstrate they had a prescriptive easement, although the extent of the easement must be determined at trial:

“An easement is not a personal right of the landowner but is an appurtenance to the land benefitted by it . . . and a grant of the land carries with it the grant of the easement” … . “An easement appurtenant occurs when [an] easement is created in writing, subscribed by the creator, and burdens the servient estate for the benefit of the dominant estate” … . However, “[t]he long-accepted rule in this State holds that a deed with a reservation or exception by the grantor in favor of a third party, a so called ‘stranger to the deed,’ does not create a valid interest in favor of that third party” … . Thus, “[f]or an easement by grant to be effective, the dominant and servient properties must have a common grantor” … .

Here, the defendant made a prima facie showing of his entitlement to judgment as a matter of law declaring that the plaintiffs do not have a deeded easement over the disputed area by “establishing that, at the time the easement was purportedly created, the grantor owned the servient property, but not the dominant property … .  * * *

… [P]laintiffs established … their predecessors in interest acquired an easement by prescription over the disputed area, which easement ran with the land when the plaintiffs purchased the property in 2018 … . Notably, the defendant learned of the purported deeded easement in 2005 and assumed that it was valid until at least July 2019. Therefore, the defendant’s relationship to the dominant estate’s use of the driveway area was one of acquiescence, rather than permission … . … Supreme Court erred in denying that branch of the plaintiffs’ cross-motion which was for summary judgment declaring that they have a prescriptive easement over the disputed area. Daniello v Wagner, 2023 NY Slip Op 06116, Second Dept 11-29-23

Practice Point: The criteria for a deeded easement and a prescriptive easement are clearly explained.

 

You might also like
MOTION FOR SUMMARY JUDGMENT ON THE ISSUE OF MOTHER’S NEGLECT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT).
CLAIMANT ENTITLED TO COMPENSATION BASED UPON THE VALUE OF THE LAND BEFORE IT WAS DESIGNATED PROTECTED WETLANDS WHICH COULD NOT BE DEVELOPED (SECOND DEPT)
PLAINTIFF’S DEPOSITION TESTIMONY, SUBMITTED BY DEFENDANT PROPERTY OWNER IN THIS STAIRCASE SLIP AND FALL CASE, SUFFICIENTLY IDENTIFIED THE CAUSES OF PLAINTIFF’S FALL AND RAISED A QUESTION OF FACT ABOUT DEFENDANT’S CONSTRUCTIVE NOTICE OF THE CONDITION OF THE STAIRCASE; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​
COUNTY PROTECTED BY GOVERNMENTAL FUNCTION IMMUNITY, COMPLAINT ALLEGED MOTORCYCLE ACCIDENT CAUSED BY NEGLIGENT TRAFFIC CONTROL.
ZONING BOARD’S DENIAL OF APPLICATION FOR SITE PLAN APPROVAL ANNULLED, BOARD’S DETERMINATION BASED SOLELY ON GENERALIZED COMMUNITY OPPOSITION.
ORGANIZATION HAD STANDING TO CONTEST HARDSHIP WAIVER GRANTED TO MINE IN CORE PRESERVATION AREA.
Acknowledgment of Paternity by Mother’s Husband Did Not Preclude Biological Father’s Petition to Be Declared the Father of the Child
PROTECTIVE ORDER DELAYING DISCOVERY UNTIL 45 DAYS BEFORE TRIAL GRANTED BY THE APPELLATE COURT (SECOND DEPT).

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 © 2025 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

THE STIPULATION RE: SHARING HUSBAND’S PENSION AT A FUTURE DATE WAS NOT... ONLY CONTRACTORS AND OWNERS AND THEIR AGENTS CAN BE LIABLE UNDER LABOR LAW 240(1)...