Practice point: An easement by prescription is demonstrated by proof of the adverse, open and notorious, and continuous use of the subject property for the prescriptive period.
Student note: Where the plaintiff demonstrates, by clear and convincing evidence, the open and notorious, continuous, and undisputed use of the subject property, it is presumed that the use was adverse, and the burden shifts to the opponent of the alleged prescriptive easement to show that the use was permissive.
Case: Ducasse v. D’Alonzo, NY Slip Op 08090 (2d Dept. 2012).
Here is the decision.
Tomorrow’s issue: Res judicata and collateral estoppel.
