Daily Development for
Tuesday, September 5, 1995

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; ACQUISITION; PRESCRIPTION: After one party establishes prescriptive easement to a boat slip on public utility property, another party may obtain an additional prescriptive right in the same boat slip. Young v. Scully, 626 N.Y.S.2d 282 (App. Div. 1995).

One family constructed the boat slip, erroneously believing that it had an easement right to do so. That family used the slip for over 40 years, and then failed to use it thereafter. A second family then began using the slip, and did so for the prescriptive period, but never had occasion to exclude the first family, which made no attempt to use the slip. The court concluded that the parties had joint rights to use the slip.

The Court also noted that the granting of the prescriptive easement to plaintiff did not increase the burden imposed on the utility's property.

Comment 1: Many jurisdictions have case law that contains the concept that the use to establish an easement by prescription must be "exclusive." For the most part, all that this means is that the use must not be the same use as made by the general public. As an example, the court in this case clearly ruled that the second user's activities had not "excluded" the first user, but nevertheless gave a prescriptive right to the second user.

Comment 2: It is not clear what the court meant to communicate in emphasizing that there was no increase in the burden on the servient tenant through recognition of the rights of both users. If there were an increase, what would be the consequence? Perhaps the prior user would lose out because the subsequent user had taken over all the "available use." But another argument could be made that the second user's right was an entirely separate one, and that both uses should be recognized even if the burden was increased.

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