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The Uncertainties of the 'Unopened' Easement
Although New York courts have long-recognized that “an easement created by grant may be extinguished by adverse possession” (See Harlem Commonwealth Council, Inc. v. Thomas Memorial Wesleyan Methodist Church, 10 A.D.3d 572 (1st Dep't 2004); Spiegel v. Ferraro, 73 N.Y.2d 622, 625 (1989); Gerbig v. Zumpano, 7 N.Y.2d 327 (1960)), a different rule has been applied to “unopened” easements — ie, easements that have been created by grant but have remained unused. Generally, a possession will not be deemed adverse to an unopened easement or right of way until three conditions have been satisfied. These conditions are: 1) the need by the easement holder for the right of way has arisen; 2) a demand has been made by the easement holder that the right of way be opened; and 3) the servient tenant (property owner) has refused the demand. Castle Associates v. Schwartz, 63 A.D.2d 481 (2d Dep't 1978).
The rationale underlying this exception to the general rule of adverse possession is that if an easement is not “definitively located and developed through use,” the easement holder could not be expected to have notice of the adverse claim until either the easement is opened or the easement holder demands that it be opened and such demand has been refused. Will v. Gates, 254 AAD2d 275 (2d Dept. 1998).
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