118 N.Y.S. 596 | N.Y. Sup. Ct. | 1909
The plaintiff owns a lot containing about ■twelve acres, lying between the highway known as the Krings Bush road and lands of the defendant. Because the defendant has insisted upon his right to pass from his own lands across the twelve-acre lot to reach said highway, this action is brought. The facts of the case are simple and practically undisputed. The plaintiff’s lot we will call the Nellis lot, and the defendant’s lot the Countryman lot. The Countryman lot has not, for many years at least, been occupied by any residence; but, as long as the memory of any witness on the stand goes back, the owner of the Countryman lot has been accustomed to pass from that lot across the twelve-acre lot. There being no residence upon the Countryman lot, and only a few acres upon it being cleared, the passing to and fro over the Nellis lot has been comparatively infrequent ; but yearly, and whenever occasion arose, either for the purpose of drawing wood, manure or crops, and for going to and from the lot to cultivate a portion of it, the ordinary passage has been over the Nellis lot. The Countryman lot reaches the Lasalleville road on its northwest side; but, near said Lasalleville road, running across the Countryman lot, is an abrupt bluff or bank, so steep that, without the construction of a roadway at considerable expense, it is practically impossible to pass from the Lasalleville road on to the Countryman lot above the bluff. The travel from the Countryman lot to the Nellis lot has been through a barway or gateway. There was some proof that, when a gate was
To create an easement or right of way over the land of another by prescription or user, the user must be open, notorious, visible, uninterrupted, undisputed, under claim of right adverse to the owner, acquiesced in by him and must,
There has been no location of a driveway reserved from cultivation for a right of way across the Nellis lot from the Countryman lot. A prescriptive right of way over another’s land generally cannot be acquired without a defined line of travel; and, where a way is claimed by prescription, the burden is on the party maintaining the right of way to show that there has been a certain and well-defined line of travel. Bushey v. Santiff, 86 Hun, 384. While there never has been any continuous, well-defined beaten track across the Nellis lot to the Countryman lot, the two barways have defined the beginning and end of the passageway for thirty years, and the line of travel from one to the other has varied but slightly from year to year. If such a right can be acquired by prescription, then the right has been acquired to travel across this lot between these two barways. A right of way by necessity over the Countryman lot across the Nellis lot does not exist (Ogden v. Jennings, 62 N. Y. 526; Girard, Titles [4th ed.], 765), and is not claimed.
There has never been any obstruction which interfered to
I, therefore, have concluded that a right of way or of private passage over the Nellis lot belongs to the Countryman lot for the purposes for which it has been used, viz., for passing to and from the said Countryman lot for' the purposes incident to its cultivation and raising and moving crops and cutting and hauling wood and lumber therefrom. This easement of right of way or of private passage extends between the two said barways or gateways, passing from the highway along the said Allen barn and then in a direct line from the Allen barn to the gateway in the line between the Countryman and Nellis lots, subject to the right to cultivate the entire extent of the Nellis lot.
Findings in conformity herewith may be presented for signature.
Ordered accordingly.