Viscusi v. Canestrano 11 A.D.2d 838

Appeal by defendants from a judgment of the Supreme Court which enjoined them from interfering with the use of a driveway by plaintiffs. The driveway extends from the street to plaintiffs’ garage and consists of two concrete strips "with grass between the strips. It is undisputed that part of the easterly strip encroaches upon defendants’ land. Plaintiffs claim a prescriptive easement by continuous use for more than 15 years. Plaintiffs purchased their premises in June, 1940, and installed the concrete strips in 1943. Defendants purchased their vacant lot in October, 1953, completed a house thereon in June, 1954, and completed a fence along the center of the easterly concrete strip in April, 1955. There is inadequate room between plaintiffs’ house and the fence to permit ingress and egress for a car to plaintiffs’ garage. Defendants contend principally that plaintiffs’ possession or use did not cover 15 years prior to the time the fence was built, and that plaintiffs’ use was not under claim of right. There is proof that plaintiffs’ predecessor in title used the area for several years to drive and park cars thereon; that there were visible tracks made by such vehicles, and that plaintiffs used the area in question and drove automobiles over it prior to the construction of the concrete strips. Such testimony covers a period of well over 15 years. The court below has found that “the plaintiffs and their predecessors in title used the driveway adversely, openly and notoriously, continuously and uninterrupted for the requisite prescription period to give rise to an easement or right of use of the same.” The evidence in the record amply supports such a finding, and under such circumstances an *839adverse holding under claim of right may be presumed. (Firman v. Confer, 273 N. Y. 357; Di Leo v. Fecksto Holding Corp., 304 N. Y. 505.) Judgment unanimously affirmed, with costs to respondents. Present — Bergan, P. J., Coon, Gibson, Herlihy and Reynolds, JJ.