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Sommo v. Sym Heller Associates, L.L.C.

A-485-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

EASEMENTS; DRIVEWAYS—Where two strips of land are used as a common driveway but such use was not planned at the time the adjacent properties were developed, the subsequent use is permissive and can be ended by either neighbor at any time.

There were two strips of adjoining property. The combined strips formed a sixteen-foot common driveway and were used by two neighbors for a number of years. In 1985, one neighbor notified the other, in writing, that he had granted permission for continued use of his strip, so as to prevent the other neighbor from claiming adverse possession. At a later time, the other neighbor paved over both strips. However, when the first neighbor placed posts in the middle of the two strips to prevent the combined strips from being used as a common driveway, the second neighbor who had paved the strips, sued seeking a declaration that she had a prescriptive easement over the first neighbor’s strip of land. The lower court dismissed her complaint, holding that there had been no more than a permissive use, thus negating an adverse use.

On appeal, the Court noted that the focal point of the matter was the neighbors’ use of each other’s adjoining property prior to 1985. It was undisputed that from 1939 to 1966, both property owners used some portion of each other’s land to drive into and out of their respective properties. However, the boundaries of the use were not precise and did not encompass the entire access/egress portion of the respective properties. Furthermore, the aggrieved neighbor admittedly never knew exactly where the property line was located.

To establish the right to use another’s land by a prescriptive or adverse easement, one must show, by clear and convincing evidence, possession of the claimed land for the statutory period. Such possession must be actual and exclusive, open and notorious, continued and uninterrupted, and adverse and hostile. Here, the Court held that the neighbors’ encroaching use of some portion of each other’s access and egress lanes was no more than permissive. Further, it was not exclusive because the neighbor claiming there was no easement also used the two strips. Thus, there was no way the defending neighbor could have been aware of the adjacent neighbor’s claim of possessory entitlement if he, too, was using the property.

Finally, the aggrieved neighbor argued that there is a general rule that where adjoining proprietors lay out a way or alley between their lands, each devoting some portion of this premises to that purpose, neither can obstruct or close that portion of the area which is within the boundary of his own land. The Court, however, held that this general rule was inapplicable under the facts presented. In the case cited by the neighbor claiming it had an easement, the original owners of the adjoining properties erected their respective houses at the same time and planned to use the area between the two houses as a common alleyway. Thus, in the cited case, from the outset, their joint use was not permissive; it was a planned, common use premised upon a continuing claim of right on the part of the common users.

In the present case, the two strips of land being used as a common driveway was not planned at the time of construction by the original owners of the properties. In fact, the exact boundaries of the so-called common access/egress area were never specifically identified. Thus, the Court concluded that this was not a common driveway, but rather a permissive use of some part of each other’s property to make access and egress more convenient. Therefore, it affirmed the lower court’s decision to dismiss the aggrieved neighbor’s complaint.


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