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Kuhn v. Tacinelli

A-3486-01T1 (N.J. Super. App. Div. 2003) (Unpublished)

EASEMENTS; PRESCRIPTION—Acquiescence of the owner of the burdened property may satisfy the requirement that an easement by prescription be by permission of that owner.

A property owner owned two adjacent properties, a single family home and a two family home, which shared a common driveway. There was a single lane driveway on one side and a double lane driveway on the other. When the owner died, she left the two properties to her children, who lived there and used the double lane driveway to maneuver in and out of the properties. When the single family home was sold to a non-family member, the new owner built a fence on the property line preventing the neighboring owner from utilizing the double lane driveway for ingress and egress. The two-family homeowner sued, claiming he had an easement by prescription across the double lane driveway and demanding that the fence be torn down and never rebuilt. The lower court ruled in favor of the two-family homeowner. In order to obtain an easement by prescription, once must establish an exclusive, continuous, and uninterrupted use for a twenty year period. The lower court noted that, although no one sought permission to utilize the driveway, no objection was raised to the practice for over thirty years. It found that the use was exclusive to the two-family homeowner and his tenants, not open to the general public, and was continuous and uninterrupted. The Appellate Division affirmed.

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