Opinion
February 25, 1985
Appeal from the Supreme Court, Nassau County (Morrison, J.).
Judgment reversed, insofar as appealed from, on the law and the facts, without costs or disbursements, it is declared that no easement was created in favor of plaintiff, and the complaint is otherwise dismissed.
It is well settled that a prescriptive easement arises by the adverse, open, notorious and continuous use of another's land for the prescriptive period ( Di Leo v Pecksto Holding Corp., 304 N.Y. 505; see also, Belotti v Bickhardt, 228 N.Y. 296).
Generally, such use of a right-of-way is presumed to be adverse and casts the burden on the owner of the servient tenement to show that the use was by license ( Pirman v Confer, 273 N.Y. 357; Beutler v Maynard, 80 A.D.2d 982, affd 56 N.Y.2d 538; Lawrence v Mullen, 40 A.D.2d 871).
However, the presumption of adversity is inapplicable "when the established user by the claimant is not exclusive" (3 Powell, Real Property ¶ 413, at 34-117). Use of a particular strip of land in common with the general public will not ripen into an easement by prescription ( see, Pirman v Confer, supra; Pro-Fac Coop. v Baltimore Ohio R.R. Co., 36 A.D.2d 441; Peck v State of New York, 15 A.D.2d 443). As the record indicates that the general public used the subject area, the presumption of adverse use cannot be applied. Plaintiff must, therefore, prove that its use of the strip of land was hostile to that of the owners of the servient tenement in order to be granted an easement by prescription. However, the relationship between plaintiff and appellants' predecessor in title (appellants took title to the servient tenement in 1976) was one of cooperation and neighborly accommodation. Permission may be inferred from such a relationship ( Hassinger v Kline, 91 A.D.2d 988).
Where permission can be implied from the beginning, no adverse use may arise until the owner of the servient tenement is made aware of the assertion of a hostile right ( see, Moore v Day, 235 N.Y. 554; Hassinger v Kline, supra; Jansen v Sawling, 37 A.D.2d 635, 636; Durand v Leigh, 15 A.D.2d 629, 630). Plaintiff has not shown that it has asserted a right hostile to that of appellants for the prescriptive period of time. Accordingly, the judgment of Special Term must be reversed, insofar as appealed from. Mangano, J.P., Bracken, Weinstein and Niehoff, JJ., concur.