Wathley v. Rosen

In consolidated actions pursuant to article 15 of the Real Property Law, to establish a roadway easement by prescription and to enjoin interference therewith, the plaintiff in both actions appeals from a judgment of the Supreme Court, Dutchess County, entered July 19, 1962 upon the court’s decision, after a nonjury trial before an Official Referee, which dismissed the complaint upon the merits. Judgment affirmed, with costs to defendants Rosen and Soukup only. In order to satisfy the 15-year prescriptive period, the plaintiff was required to establish “ tacking ”, The learned Official Referee properly found that the evidence failed to establish either: (1) a continuous, adverse use of the roadway, under claim of right, by plaintiff’s predecessors in title; or (2) any intent by such predecessors in title to convey any rights in the roadway to plaintiff and his wife (Jacobs v. Lewicki, 12 A D 2d 625, affd. 10 Y Y 2d 778; Van Roo v. Van Roo, 268 App. Div. 170, affd. 294 Y. Y. 731). Moreover, the proof failed to establish the essential continuous, exclusive and adverse use of the roadway, under claim of right, by the plaintiff himself (Firman v. Confer, 273 Y. Y. 357; Belotti v. Bickhardt, 228 Y. Y. 296, 302). Ughetta, Acting P. J., Kleinfeld, Christ, Brennan and Hopkins JJ., concur.