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#41827 - 11/19/08 03:11 AM Re: Climbing access [Re: tls]
pedestrian Offline
Pooh-Bah

Registered: 08/05/02
Posts: 2244
Loc: a heavily fortified bunker!
actually, tls, a preemptive right of way does not exist until a court finds it to exist, and the courts are typically (and particularly so in new york state) reluctant to void a landowner's rights in this fashion. this has been discussed ad nauseum in the past. it's far from a slam dunk.

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#41828 - 11/19/08 03:31 AM Re: Climbing access [Re: tls]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
 Quote:
Leaving climbing aside, a landowner can't close a preexisting trail just because he wants to -- because you can't magically cause a right of way to disappear.

The above refers to prescriptive easement which can only be granted by a court. Absent such court ordered prescriptive easement a landowner can indeed close a pre-existing trail just because he/she wants to. If you disagree, please provide New York case law precedent for my edification.

It would be interesting to see if a court would grant a prescriptive easement to make it more convenient for climbers or other recreationists to get to the far end of the Nears when a piece in the middle closes. After all, climbers or hikers will still have access to the far end of the Nears by walking out the Millbrook Ridge Trail and descending between The Nears and The Bayards. A prescriptive easement would merely make such access more convenient.

Also, who would the plaintiffs be? As far as I know the Mohonk Preserve has no interest in suing for prescriptive easements and now it seems clear that neither does the GCC. As well, the Access Fund recognizes that claims of prescriptive easement for climbers will have a deleterious effect on access for climbers elsewhere as a landowners best defense against future claims of prescriptive easement is closing one's land.

Edited to add: tls, if you have New York case law of a prescriptive easement providing easier access, rather than just access, to get where one is going, I'd very much like to read that too. Thanks.



Edited by Kent (11/19/08 03:38 AM)

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#41829 - 11/19/08 03:49 AM Re: Climbing access [Re: Kent]
pedestrian Offline
Pooh-Bah

Registered: 08/05/02
Posts: 2244
Loc: a heavily fortified bunker!
A lot varies by jurisdiction. Prescriptive easements, generally, are only granted for transit as far as I know. There may be an easement by necessity for certain purposes but I can't imagine such purposes would include climbing on the privately owned portion in the middle.

IANAL.
~N

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#41838 - 11/19/08 07:03 PM Re: Climbing access [Re: pedestrian]
pda Offline
addict

Registered: 08/30/01
Posts: 623
Loc: Bergen County NJ
"Notwithstanding the general rule that easements are usually in writing, it should be pointed out that some are not. ''There are easements that are called easements by prescription,'' said J. J. Broderick, a New Brunswick, N.J., real estate lawyer. Mr. Broderick explained that such easements were acquired by the use of a piece of property over an extended period of time.

For example, Mr. Broderick said, if Mr. Smith builds a carport that extends 10 feet onto Ms. Jones's property and then uses the carport openly, continuously and without permission for a long time, then it is a good bet that Mr. Smith's car can stay where it is even after Ms. Jones decides it is no longer welcome.

In fact, the car can probably stay put even after Ms. Jones sells her property because Mr. Smith would likely acquire a prescriptive easement to the portion of his neighbor's land on which his car sits.

But what's a long time?

''The time period depends on the jurisdiction,'' Mr. Broderick said, adding that in New Jersey, 20 years might be long enough.

In New York, the period is 10 years; in Connecticut, it's 15.

Rights of way, like prescriptive easements, can often appear out of nowhere.

For example, Mr. Broderick said, if Mr. Smith has to drive over a portion of Ms. Jones's property to get to his car, and he does so openly and notoriously for a long time (again, depending on where the property is situated), then Mr. Smith would eventually acquire a right of way over Ms. Jones' property.

And once a right of way has been established, Mr. Broderick said, Ms. Jones can no longer do anything to prohibit Mr. Smith from using her lawn as a driveway. ''If you interfere with an easement or a right of way,'' Mr. Broderick said, ''that could be a problem because the person using it could have a cause of action against you.''

http://query.nytimes.com/gst/fullpage.html?res=9905E1DC163EF930A15751C0A961958260

Maybe the plaintiffs would be the property owners suing others for alleged trespass.

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#41842 - 11/19/08 07:31 PM Re: Climbing access [Re: pda]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
A claim of right-of-way to get from one portion of a private property to another portion of the same private property, by the most convenient route, will be a difficult case to make. And again, if such claim is made, regardless of whether or not it is successful, then property owners everywhere along the ridge, and elsewhere, will have strong motivation to close their properties as a defense against the possibility of such claims being made against them in the future.

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#41848 - 11/19/08 09:42 PM Re: Climbing access [Re: Kent]
pda Offline
addict

Registered: 08/30/01
Posts: 623
Loc: Bergen County NJ
I agree. Interesting topic nonetheless.

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#41859 - 11/20/08 07:12 AM Re: Climbing access [Re: pda]
rg@ofmc Offline
Pooh-Bah

Registered: 12/25/99
Posts: 2472
Loc: Poughkeepsie, NY
 Originally Posted By: Kent
It would be interesting to see if a court would grant a prescriptive easement to make it more convenient for climbers or other recreationists to get to the far end of the Nears when a piece in the middle closes. After all, climbers or hikers will still have access to the far end of the Nears by walking out the Millbrook Ridge Trail and descending between The Nears and The Bayards. A prescriptive easement would merely make such access more convenient...A claim of right-of-way to get from one portion of a private property to another portion of the same private property, by the most convenient route, will be a difficult case to make.


 Originally Posted By: pda
Prescriptive easements, generally, are only granted for transit as far as I know.


According to my reading, the language of prescriptive easment in New York state refers to "use" of land, not to whether that use is necessary or convenient, and it does not restrict the definition of use to transit, even if the majority of court cases involve that issue. There is another type of easement, Easement by Necessity, that would presumably fail in the case of getting from one part of the Nears to the other. But the conditions for prescriptive easement are that the owner of the land is legally able but fails to bring an action against the users for the ten-year statute of limitations, that the use must be known to the landowner and continuous during the ten year period, and must be without permission from the owner of the land.

 Originally Posted By: Kent
And again, if such claim is made, regardless of whether or not it is successful, then property owners everywhere along the ridge, and elsewhere, will have strong motivation to close their properties as a defense against the possibility of such claims being made against them in the future.


But if, god forbid, it ever came to actual legal actions, then closing land to prevent future action would have to be balanced against the possibility of having to defend against suits provoked by the closing, so the decision doesn't seem to me to be entirely clear-cut. Moreover, it doesn't seem to me that closing the property is enough to prevent prescriptive easment claims, in fact is to some extent a precondition for such claims, which require that the use be "hostile." The landowners might have to make an ongoing effort to bring actions against trespassers. And oddly enough, it seems that a sure-fire way to prevent such claims in the future would be to grant access permission, in which case a prescriptive easment cannot be claimed, and then landowners could deny access in the future without any exposure to the prescriptive easement argument.

Another way, going forward, to prevent future prescriptive claims would be to interfere with the "continuous use" condition that must be in effect for a ten year-period. It seems to me that even a single documented one-day closing, say every year, would be more than enough to prevent "continuous" use.

So if I owned land climbers have been using for fifty years, I think I'd go down to my local town hall and try to file something, if this is possible, indicating I have granted permission for climbing on my land except for absolute closures on Christmas, Yom Kippur, and the last day of Ramadan, and then by god I have a Muslim Patrol on Christmas, a Christian Patrol on Yom Kippur, and a Jewish Patrol on Ramadan to make damn sure no one was on my land on those sacred days. End of presecriptive easement claims as far as I can tell, and who knows, maybe world peace as a side benefit.

I'm just a lowly mathematician way, way, way, out of my depth here. I just went off and read a bunch o' legalese and then mouthed off about it. It's probably a genetic defect, I come from a family of lawyers. If McCarthy ever sees this, he's gonna toast my ass so bad I'll be standing for a year. He already thinks I've exceeded my pay grade on the history of Gunks climbing.

But hypotheticals notwithstanding (bread and butter for those of us in the theory business), one can only pray that some kind of meeting of the minds can prevent an escalation that ever even approaches these scenarios.

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#41862 - 11/20/08 02:31 PM Re: Climbing access [Re: rg@ofmc]
Kent Offline
old hand

Registered: 01/21/00
Posts: 1038
Loc: The Bayards
Another nice post Rich.

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