Daily Development for Wednesday, April 12, 2000

By: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

Two interesting prescriptive easement cases evidencing special factual approaches to common problems. Ah!! the beautiful complexity of the Common Law!!!

EASEMENTS; CREATION; PRESCRIPTION; REQUIREMENT OF HOSTILITY: In Iowa, the simple existence of continuous unpermitted use does not give rise to a presumption of hostility; a prescriptive claimant must demonstrate further some evidence of claim of right, and such requirement can be supplied by acts of maintaining and improving a claimed prescriptive right of way.

Collins Trust v. Allamakee County Bd. of Supervisors, 599 N.W. 2d 461 (Iowa 1999)

A train wreck adjacent to a county road created debris that blocked the road. No one cleared the debris for many years, and persons using the road just drove around it, onto property owned by a neighboring farmer. This use continued for forty years. The road was a dirt road with some gravel covering, and the County periodically sent crews to maintain it, although it ignored the road in the winter. At one point, the County installed a culvert in the bend to facilitate drainage.

Ultimately, the farmer took it upon himself to clear away the roadway debris and reestablish the road in its original configuration. It fenced off the area that had been used to detour around the debris, and planted walnut seedlings. The County removed the fence, and stacked the pieces on the farmer's land, from which they were stolen. Ultimately, the walnut seedlings also were destroyed, and the farmer sued for damages.

The court held that although Iowa law makes clear that something more than simple continuation of an unpermitted use is necessary to establish hostility for a prescriptive easement, that element can be supplied where a public agency makes improvements to an argued prescriptive roadway. The court observed that public agencies typically do not improve private lands, and that the County's activities demonstrated that the road usage was a claim of right. Consequently a public prescriptive right of way was established in the County.

Comment 1: It is interesting to contrast the conclusion in this case with that in the case set forth below, where the county in question apparently routinely maintained both private and public roads within its area. In the instant case, where the bend in the road was between two segments of an existing public road, one would think that the County's decision to maintain the road on the private property might be quite understandable, and would not necessarily suggest to the owner of the farm that the County was claiming ownership.

There is, however, the feature of forty years of uncontested use. In the editor's view, this usage is far more compelling argument that a claim of right existed than the simple installation of a drainage culvert.

Bruce & Ely, in their treatise on Easements, (Section 5.03[2]cite authority for the proposition that sustained use of a roadway on private land by the general public is evidence of *permission,* rather than hostility, and this kind of thinking may be reflected in the Iowa court's view that general public use alone is not sufficient to establish claim of right.

Comment 2: In any event, the editor's heart is with the servient owner here. The County's own negligence in failing to clear away debris from the train wreck on the County right of way for over forty years not only inconvenienced the landowner, but ultimately led to a permanent loss of control over some of his property. Something just ain't right here.

EASEMENTS, CREATION; DEDICATION; IMPLIED DEDICATION: In Texas, alleged prescriptive uses must be exclusive to be hostile.

County of Real v. Sutton, 6 S.W.3d 11 (Tex. Ct. App. 1999).

The roadway in question ran through two Texas ranches out to a public road. Litigation ensued when a county government sent the ranch owners a letter claiming public ownership of the roadway and demanding that gates which had been locked across the roadway (at one ranch for over twenty years) be unlocked.

The trial court granted to the landowners a judgment notwithstanding the verdict, and the appeals court here affirmed.

Central to the county's appeal was the view espoused by the trial judge that the use of a roadway by persons other than the owner cannot be "hostile" if the roadway is concurrently being used by the alleged servient owners. In other words, the trial judge imposed a requirement that the use by the prescriptive claimants be "exclusive."

The court acknowledged some disagreement in the Texas cases on the point, but chose to depart from other appeals courts that had concluded that a prescriptive use can arise when the users are making a use with a claim of right, even though the owners are making a concurrent use.

To evaluate the claimed implied dedication, the court used a factintensive analysis, citing uses of the roadway of both a private and public (though permissive) nature in mixed accounts by elderly neighbors and in old county correspondence and maintenance records. Despite the fact that the State of Texas had abolished the common law doctrine of implied dedication in 1981, the county was allowed to proceed with its claim of implied dedication, but only as it applied in 1981 just prior to the doctrine's abolition. Since the evidence presented equal inferences of both private and public ownership, the county did not meet the requirement that "some evidence" supported the jury's findings that the county had acquired title both through implied dedication. Of interest in this holding was the court's observation that historically the County had paid to maintain both private and public roads, so the County's acceptance of maintenance responsibilities of the road in question over the years did not necessarily constitute any evidence of dedication to the public use.

Comment: If the requirement that the prescriptive use be "exclusive" is the law in Texas, then Texas has departed from the prevailing common law approach around the country, which requires only that the use be under a claim independent of the owner's permission. It is difficult for the editor to understand why the fact that a roadway is used by the servient owner would necessarily bar a conclusion that the use by others is not hostile. For a statement of the general rule, and an acknowledgment (as if any proof were necessary) that Texas is unique, see Bruce & Ely, Easements and Licenses in Land, Sec. 5.07 (Warren, Gorham & Lamont 1995)

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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