Opinion
April 27, 1955.
Appeal from Oneida Equity Term.
Present — McCurn, P.J., Vaughan. Kimball, Wheeler and Van Duser, JJ.
Judgment modified, on the law and facts in accordance with the memorandum and, as modified, affirmed, with costs to plaintiffs. Certain findings of fact disapproved and reversed and new findings made. Memorandum: In our judgment, the defendants-respondents-appellants have failed to establish an easement by prescription in the driveway involved here. Their use of it has not been adverse or hostile. There is no evidence of actual adverseness, nor any claim of right. Nor under the facts, as disclosed by the evidence, is there any presumption of any adverse claim. ( Moore v. Day, 199 App. Div. 76, 87, affd. 235 N.Y. 554; Pirman v. Confer, 273 N.Y. 357, 363; Di Leo v. Pecksto Holding Corp., 304 N.Y. 505, 512; Wood v. Reed, 30 N YS. 112; Cobb v. Avery, 75 N.Y.S.2d 803, 806; Norwick v. Edelman, 204 Misc. 915, 917; Sebring v. Fitzgerald, 142 Misc. 474; Anthony v. Kennard Bldg. Co., 188 Mo. 704.) The judgment should be modified: (1) To eliminate therefrom the determinations therein: (a) That defendants or either of them own an easement by prescription in the driveway; (b) That defendants or either of them may park trucks or other vehicles in the driveway; and (c) That the defendants may use the driveway; (2) To declare and determine that defendants have no right, title or interest in or to the driveway or any part thereof; and (3) enjoining and restraining the defendants, their agents, servants and employees, and all persons acting in privity and concert with them, from entering upon or using the driveway or any part thereof, and from interfering with the use thereof by plaintiffs, their employees and customers in any manner; and, as so modified, the judgment should be affirmed. All concur.