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01/26/76 CHESLEK v. GILLETTE (HESSEL-CHESLEK

January 26, 1976

CHESLEK
v.
GILLETTE; (HESSEL-CHESLEK FUNERAL HOME V. GILLETTE)



Appeal from Kent, George V. Boucher, J.

Danhof, P. J., and Quinn and D. E. Holbrook, Jr., JJ.

SYLLABUS BY THE COURT

1. Equity -- De Novo Review -- Findings of Fact -- Different Result.

Equity cases are reviewed de novo on appeal but the findings of the trial court will not be disturbed unless after an examination of the entire record an appellate court concludes it would have arrived at a different result.

2. Easements -- Prescriptions -- Grants -- Adverse Use -- Claim of Right -- Permission.

An easement by prescription is founded upon the supposition of a grant, and the use or possession to support it must be adverse, or of such a nature as indicates that it is claimed as a right; permission is insufficient.

3. Real Actions -- Adverse User -- Ownership Rights -- Permission -- Exclusivity of Use -- Like Rights.

Adverse user is such use of property as the owner himself would exercise, disregarding the claims of others entirely, asking permission from no one, and using the property under a claim of right; it must be exclusive in the sense that the right does not depend on a like right in others.

4. Easements -- Permissive Users -- Attempts to Grant.

The rule that a permissive user will not ripen into an easement by prescription does not apply where there has been an attempt to grant the easement which is void because of the statute of frauds.

5. Easements -- Burden of Proof -- Evidence -- Adverse User.

The burden of proving the existence of an easement is upon the claimant thereof, and evidence of adverse user must be clear.

6. Easements -- Mutual Use -- Joint Ownership -- Joint Benefits.

An argument that there was mutual use of a driveway over which an easement is claimed is not upheld where the driveway was neither owned half and half by the adjoining lot owners, nor was it ...


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