Durand v. Leigh

Appellate Division of the Supreme Court of New York

Durand v. Leigh

15 A.D.2d 629, 222 N.Y.S.2d 215, 1961 N.Y. App. Div. LEXIS 7306

CourtAppellate Division of the Supreme Court of the State of New York

DecidedDecember 7, 1961

StatusPublished

Cited by3 cases

This text of 15 A.D.2d 629 (Durand v. Leigh) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Durand v. Leigh, 15 A.D.2d 629, 222 N.Y.S.2d 215, 1961 N.Y. App. Div. LEXIS 7306 (N.Y. Ct. App. 1961).

Pincite

Opinion

[630]*630Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Memorandum: The finding by the trial court that the use of the lane across the plaintiff’s property by the defendants was adverse was not supported by the evidence. The evidence established that the user had originated in permission given by the plaintiff’s predecessor in title to the defendants’ predecessor in title. “If permissive in its inception, such permissive character will continue of the same nature, and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner, and brought home to him ” (Moore v. Day, 199 App. Div. 76, 86, affd. 235 N. Y. 554; see generally, 2 N. Y. Jur., Adverse Possession, § 12). There is no proof in this case that the user, originally permissive, later became hostile by virtue of any “ distinct and positive assertion”. The conclusion of the trial court that the defendants had acquired a right of way by prescription must accordingly be reversed. The plaintiff is entitled to an injunction against the defendants’ use of the lane. (Appeal from judgment of Monroe Equity Term dismissing plaintiff’s complaint in an action to recover damages for trespass.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.

Free access — add to your briefcase to read the full text and ask questions with AI

[630]*630Certain findings of fact and conclusions of law disapproved and reversed and new findings made. Memorandum: The finding by the trial court that the use of the lane across the plaintiff’s property by the defendants was adverse was not supported by the evidence. The evidence established that the user had originated in permission given by the plaintiff’s predecessor in title to the defendants’ predecessor in title. “If permissive in its inception, such permissive character will continue of the same nature, and no adverse user can arise until there is a distinct and positive assertion of a right hostile to the owner, and brought home to him ” (Moore v. Day, 199 App. Div. 76, 86, affd. 235 N. Y. 554; see generally, 2 N. Y. Jur., Adverse Possession, § 12). There is no proof in this case that the user, originally permissive, later became hostile by virtue of any “ distinct and positive assertion”. The conclusion of the trial court that the defendants had acquired a right of way by prescription must accordingly be reversed. The plaintiff is entitled to an injunction against the defendants’ use of the lane. (Appeal from judgment of Monroe Equity Term dismissing plaintiff’s complaint in an action to recover damages for trespass.) Present — Williams, P. J., Bastow, Goldman, Halpern and McClusky, JJ.

Cite This Page — Counsel Stack

Bluebook (online)

15 A.D.2d 629, 222 N.Y.S.2d 215, 1961 N.Y. App. Div. LEXIS 7306, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durand-v-leigh-nyappdiv-1961.

Opinion

Related

Cite This Page — Counsel Stack