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Agresta v. Webster

A-1537-98T5 (N.J. Super. App. Div. 1999) (Unpublished)

EASEMENTS; PRESCRIPTION—Access over a neighbor’s parking lot by delivery drivers for their own convenience in maneuvering trucks is insufficient to gain an easement by prescription even if it has continued for longer than twenty years.

Two commercial properties were separated by a one-way street. Access to one of the properties was through a tunnel. It appeared that persons making deliveries to that property in straight trucks, such as garbage trucks and UPS delivery vans, performed a maneuver utilizing part of the other property owner’s parking lot which was located across the street from the tunnel. The objective of the drivers was to straighten their vehicle so that they could back into the tunnel to access the rear of the subject property and its loading dock. Proofs established that for at least twenty-three years (and possibly for thirty-five or forty years) drivers making deliveries to the property with the tunnel used the other owner’s parking lot. It was also established that although using the other owner’s parking lot made the maneuver easier, the maneuver could be performed without using that parking lot. The owner of the property serviced by the tunnel was seeking a judicial declaration that it had obtained an easement by prescription across the other owner’s parking lot. The elements required for such an easement are that the use be adverse, hostile, continuous, uninterrupted, visible, and notorious. The purpose is to show intent to claim as against the true owner and the use “must be under a claim of right with such circumstances of notoriety as that the person against whom it is exercised may be so aware of the fact as to enable him to resist the acquisition of the right before the period of prescription has elapsed.” The lower court determined that there was no showing of “intent to claim as against the true owner” and that the use lacked “such circumstances of notoriety ... that [the owners] may be so aware of the fact as to enable [them] to resist the acquisition of the right before the period of prescription has elapsed.” The Appellate Division observed that the alleged adverse use of the other parking lot was by persons other than the owner seeking the easement and that the use of that parking lot was a convenience for those third parties, not a necessity. The absence of necessity detracted from the existence of circumstances showing an intent to claim a right as against the owner. Moreover, since the parking lot being used by the trucks was, in fact, being used in a manner consistent with its design, i.e., there was a curb cut and driveway giving access to the parking lot, the mere use of the property in such manner “did not bespeak an intent to claim a right as against the true owner.” Consequently, the Court denied the claim of an easement by prescription.


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