Daily Development for Monday, February 11, 2008
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Husch Blackwell Sanders
Kansas City, Missouri

EASEMENTS; TERMINATION; PRESCRIPTIVE BLOCKAGE: Planting of trees in easement is sufficient adverse use to terminate that portion of servient area, and special six year statute on injury to incorporeal hereditiments sets the appropriate measuring period, rather than longer adverse possession statute.

Link v. Pottle, 654 S.E. 2d 64 (N.Car. App. 2007)

In an island community, a number of subdivided lots benefitted from a thirty foot easement over two lots that lay between the benefitted lots and the public road.  Within the preceding eleven years, owners of the two servient properties had planted trees and landscaping within the thirty foot right of way.  All of this, the inland owners alleged, interfered with access for large trucks, moving vans, and the like, providing services to their properties, and they sought injunctive relief clearing the easement.

The servient properties responded that the had maintained the obstructions for over six years and that therefore they were entitled to a finding of prescriptive blockage, permitting them to maintain permanently the obstructions of the easement. Section 1-50(3), North Carolina general statutes, requires that an action for injury to any incorporeal hereditament be brought within six years The dominant owners argued that the twenty year North Carolina statute of limitations on adverse possession ought to control.

Of course, the literal language of the statute applied to blockages of incorporeal hereditemants, which, according to common usage and dictionary definitions, includes easements.  But plaintiffs argued that it is one thing to claim a prescriptive right to block and easement and quite another to assert a permanent right - virtually ownership.  It cited to two cases in which landowners had built permanent structures across property lines and argued that the three year statute on trespass applied to bar further claims.  The court rejected this argument and held that a claim of the right to maintain a permanent structure was a claim of ownership, and that the twenty year North Carolina adverse possession statute would apply.  Similarly, plaintiffs argued, the permanent right of blockage alleged here effectively returned ownership of the blocked area back to them. 

Presumably, the plaintiffs argued to the appeals court that the statute aimed to apply the shorter statute of limitations to continuous activities and uses that do not amount to the establishment of permanent physical rights.  Of course, many incorporeal hereditimants are use covenants and similar restrictions, and certainly the typical injury such restrictions is not a permanent improvement. 

Nice as this distinction might be, it failed to convince the court, which held that the statute's literal reach applied to the defendant's activity here.  Six years is all that is required.  As the trees had been planted earlier than six years before suit, they stayed. 

Comment 1: Most jurisdictions, the editor believes, do apply the same statute of limitations to the establishment of prescriptive easements and to blockage of easements and covenants as they do to adverse possession generally.  In Missouri, for instance, it's all ten years.  Some statutes that have different statutes for prescriptive easements than for adverse possession, and presumably the same statute would apply to prescriptive blockage.  In some of these the adverse possession requirement is longer, but in some it is shorter.  See, e.g.:  Randolph Town Center, L.P. v. County of Morris, 864 A. 2d 1191 (N.J. Super. 2005) (The DIRT DD for 3/29/05) (New Jersey court holds that statute of limitations for prescriptive easement may be as long as sixty years, and never less than thirty years, although adverse possession period is twenty years.)

The North Carolina legislature chose to subject its citizens to this rather short prescriptive blockage statute, likely because of some sad story involving some sad legislator a number of years before.  Whatever the reason, it's the policy of the state, and the editor believes the court was correct in divining and applying the probable intent of the statute.  But what a terrible result. 

Another analysis the court might have used, however, would be to conclude that the trees didn't begin to establish prescriptive blockage until they in fact interfered with the needs of the neighbors.  In other words, if, prior to the dispute arising, the neighbors had had no need for to protest the encroachment, and that consequently no hostile claim had arisen, as the servient tenant had the right to use the servient property for landscaping, including trees, until such time as there was interference with the needs of the dominant owners.  For an interesting application of this theory, see Sabino Town & Country Estates Association v. Carr, 920 P.2d 26 (Ariz.
Ct. App. 1996). (The DIRt DD for 2/3/97) (Even  fencing off of motor vehicle access across easement by servient owner does not extinguish recorded easement for motor vehicle access when servient owner continues to allow pedestrian and equestrian access.   Dominant owner is later able to get fence removed to accommodate new need for vehicular access.)

Comment 2: Compare:  Silacci v. Abramson, 53 Cal. Rptr. 2d 37 (Cal. App. 1996, the DIRT DD for 9/25/96) where a landowner attempted to establish anexclusive prescriptive easement right in order to take advantage of the prescription statute in California, which permitted prescriptive easements to be established in five years without evidence of payment of taxes.  Although California's adverse possession period is equally short - five years - the claimant must show payment of taxes.  The court rejected the claim, holding that where a permanent exclusive right it sought, we have an adverse possession claim.  The reasoning is similar to the argument made by the plaintiff in the instant case, but the problem is that the defendants in the instant case were already the owners of the servient land, and were merely attempting to establish a right to block, not a new permanent right of ownership.

Comment 3: Here are some puzzlers: 

(1) What if the trees blow down or otherwise disappear?  Is the prescriptive easement to maintain these trees, or any trees within the area occupied by the original obstructing trees?  The editor presumes that a court would permit replacement.

(2) Can the trees grow further into the easement area?  Note that traditionally the scope of a prescriptive easement is limited to the original area occupied by the prescriptive use.  
Compare:  Koresko v. Farley, 2003 WL 23318662 (Pa.Cmwlth.) (The DIRT DD for 5/6/04) (In a case of first impression, the Commonwealth Court of Pennsylvania decides that a prescriptive easement did not arise from encroaching tree roots and overhanging branches.)

(3) For that matter, what is the width of the prescriptive blockage?  The maximum spread of the branches over the ten years of prescriptive activity, or the minimum spread within the most recent six years, or some other measure.  Could make a big difference to those moving trucks taking away the belongings of the neighboring owners whose properties have suddenly lost significant value through their neighbor's land grab.

Items reported here and in the ABA publications
are for general information purposes only and
should not be relied upon in the course of
representation or in the forming of decisions in
legal matters.  The same is true of all
commentary provided by contributors to the DIRT
list.  Accuracy of data and opinions expressed
are the sole responsibility of the DIRT editor
and are in no sense the publication of the ABA.

Parties posting messages to DIRT are posting to a
source that is readily accessible by members of
the general public, and should take that fact
into account in evaluating confidentiality


DIRT is an internet discussion group for serious
real estate professionals. Message volume varies,
but commonly runs 5 to 15 messages per work day.

Daily Developments are posted every work day.  To
subscribe, send the message

subscribe Dirt [your name]



To cancel your subscription, send the message
signoff DIRT to the address:


for information on other commands, send the message
Help to the listserv address.

DIRT has an alternate, more extensive coverage that includes not only
commercial and general real estate matters but also focuses specifically upon
residential real estate matters.  Because real estate brokers generally find
this service more valuable, it is namedBrokerDIRT.  But residential
specialist attorneys, title insurers, lenders and others interested in the
residential market will want to subscribe to this alternative list.  If you
subscribe to BrokerDIRT, it is not necessary also to subscribe to DIRT, as
BrokerDIRT carries all DIRT traffic in addition to the residential discussions.

To subscribe to BrokerDIRT, send the message

subscribe BrokerDIRT [your name]



To cancel your subscription to BrokerDIRT, send the message
signoff BrokerDIRT to the address:


DIRT is a service of the American Bar Association
Section on Real Property, Probate & Trust Law and
the University of Missouri, Kansas City, School
of Law.  Daily Developments are copyrighted by
Patrick A. Randolph, Jr., Professor of Law, UMKC
School of Law, but Professor Randolph grants
permission for copying or distribution of Daily
Developments for educational purposes, including
professional continuing education, provided that
no charge is imposed for such distribution and
that appropriate credit is given to Professor
Randolph, DIRT, and its sponsors.

DIRT has a WebPage at:
https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=3D http://cctr.umkc.edu/dept/dirt/


To be removed from this mailing list, please go to
<https://e2k.exchange.umkc.edu/exchweb/bin/redir.asp?URL=3D http://listserv.umkc.edu/listserv/wa.exe?SUBED1=3DBROKERDIRT%26A=3D1
or send an email message to the address listserv@listserv.umkc.edu,
with the text SIGNOFF BROKERDIRT in the body of the message. Problems
or questions should be directed to manager@listserv.umkc.edu.