Legal Memorandum: An Easement by Prescription in NY

Issue: Under New York law, how does a property owner acquire an easement by prescription to drain surface water?

It is settled that "an easement for drainage of surface water may be acquired by prescription," Torre v. Meade, 226 A.D.2d 447, 447 (2d Dep’t 1996).  In order to establish an easement by prescription, a party must show by clear and convincing evidence the adverse, open and notorious, continued and uninterrupted use of property for the prescriptive period of 10 years, Vinciguerra v. State, 693 N.Y.S.2d 634, 637 (3d Dep’t 1999); Led Duke v. Sommer, 205 A.D.2d 1009, 1010 (3d Dep’t 1994), or 15 years if use commenced prior to September 1, 1963, the date on which the statutory period changed, City of Tonawanda v. Ellicott Creek Homeowners Ass’n 86 A.D.2d 118, 121 (4th Dep’t 1982)  Once open, notorious and uninterrupted use is shown, a presumption that it was adverse arises and the burden shifts to the property owner to establish permission.  Kusmierz v. Baan, 144 A.D.2d 829, 830 (3d Dep’t 1988); Village of Schoharie v. Coons, 34 A.D.2d 701, 702 (3d Dep’t 1970), aff’d, 28 N.Y.2d 568 (1971).         New York courts have held that prescriptive easements for the discharge of surface waters existed in a number of cases.  See, e.g., Vinciguerra, 693 N.Y.S.2d at 637 (state established prescriptive easement for drainage across plaintiffs’ property and therefore they had no cause of action for continuing trespass); Torre, 226 A.D.2d at 447 (defendants use of culvert to drain water on  plaintiff’s property […]