In 1981, Nancy Gold acquired title to property which had an easement giving her neighbor, Carol Majkut, access to a local route by way of a gravel road and bridge situated on Gold's land. Gold believed that the easement had been abandoned when she purchased the parcel, apparently because the bridge was in a state of disrepair.
In 1998, Patrick Di Cerbo purchased Majkut's lot and repaired the bridge and road in 2002.
A year later, Gold filed suit in Schenectady County Supreme Court alleging that the easement had been abandoned and/or extinguished by way of adverse possession. Her complaint demanded that the bridge be removed and the effects of construction repaired. At trial, the Supreme Court directed a verdict in Di Cerbo's favor and dismissed the complaint. On appeal, the Appellate Division, Third Department, affirmed.
The AD3 noted that while an easement may be abandoned, clear and convincing evidence must be proffered demonstrating "both an intention to abandon and also some overt act or failure to act which carries the implication that [the easement holder] neither claims nor retains any interest in the easement." Mere disuse will not support such a claim.
At trial, Majkut testified that she had continued to use the bridge as a pedestrian walkway even after the structure had been rendered unsafe for vehicular traffic. She testified decisively in Di Cerbo's favor by indicating that she "never renounced or gave up her right to the easement."
An easement may be extinguished by adverse possession if the owner of the servient estate (in this case, Gold) disavows the easement and excludes the easement holder, who then acquiesces to the exclusion for at least a decade. Even though Gold demonstrated use of the easement for hikes, nature walks and cross-country skiing, and while her family also planted and mowed in its vicinity, those activities were neither inconsistent with the easement nor adverse to the easement holder. Significantly, there was no evidence that Gold had ever erected barriers or prevented the easement's use by others.
As a result, Di Cerbo's rights to the easement could not be readily abridged.
For a copy of the Appellate Division's decision, please use this link: Gold v. Di Cerbo