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Yellen v. Kassin

416 N.J. Super. 113, 3 A.3d 584 (App. Div. 2010)

EASEMENTS — Anyone who argues that an easement exists by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years.

An owner of residential property, who was about to sell her home, filed suit against her neighbor. She sought a ruling seeking that no easement existed across her property or across her neighbor’s property for their respective uses. The properties had driveways that ran along their property lines but diverged to provide access or egress onto separate roads. The two properties had once been a single parcel. No easement rights had been conveyed in deeds or if any of the many other title documents originating with the common owner.

Testimony indicated that each landowner had agreed to use the access point provided by the other’s driveway only as an exit, and this arrangement existed for more than thirty years. This mutual use was not, however, without interruption. Both landowners testified that they periodically parked cars along the common boundary to prevent access to their respective driveways. Further, the neighbor had installed a pool that required realigning of her driveway, for which she did not ask permission.

The lower court concluded that the parties each had traversed the other’s property without objection for thirty years as a mutually agreed course of access. The lower court found that the mutual conduct and permissiveness of the parties resulted in the creation of mutual, prescriptive easements. The owner who filed suit appealed.

The Appellate Division reversed, holding that the mutual driveway use was not hostile, and thus, there were no reciprocal prescriptive easements. According to the Court, one who argues that an easement exists by prescription must prove an adverse use of land that is visible, open, and notorious for at least thirty years. A use is adverse or hostile if a person uses the property of another under a claim of right. The Court said that an easement by prescription requires more than the mere use of property of others. In this matter, the Court held that the evidence did not establish that the use of the driveways was hostile in the sense that either party considered use of the other’s driveway under a claim of right with the intent to claim an interest in the other’s property. Notably, the relocation of the driveway was not met by any objection, nor did the neighbor ask permission to undertake the project. Neither party ever objected to the limitation placed on the use of the other’s property regarding the driveways as only exit points. The Court viewed the mutual use as merely permissive, subject to alteration as the needs of each neighbor changed over time. This behavior fell short of the standard for the establishment of an easement by prescription.


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