Daily Development for
Tuesday October 10, 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
EASEMENTS; PRESCRIPTION;
REQUIREMENT OF HOSTILITY; PERMISSION: Use of a claimed easement area shared with
owner is hostile, and not with permission, when the adverse user believes,
albeit incorrectly, that it has a legal right to conduct such use.
Plymouth Canton Community
Crier Inc. v. Prose, 2000 WL 1458810 (Mich.App.)
There was an express
easement granting the dominant owner the right to vehicular and pedestrian
travel "in common with the owner of the remainder of [the servient
estate], excluding use by either owner for parking or other use."
In fact, it was apparently
the intent of the parties to create an easement that permitted loading and
unloading of trucks from entrances served by the easement area to both parties'
buildings, and the parties both continued such use for the prescriptive period,
after which the servient property passed into the hands of another and a
dispute arose.
The trial court excluded
evidence of the intent of the parties that loading and unloading was intended
as party of the easement, noting that the express easement was clear and
unequivocal and that the present owners were not parties to the negotiations
for the easement.
It concluded, however,
that an easement by prescription had arisen.
On appeal: Held: Affirmed.
The appeals court
commented that the trial court had been correct in excluding evidence of the
negotiations, and therefore in ruling that there was no express easement. But
it affirmed the trial court's finding that a prescriptive easement had been
created.
The owner's strongest
argument against the finding of a prescriptive easement was its claim that the
loading and unloading had been a permissive use. The court acknowledged that if
the only evidence was that the plaintiff used the easement area for loading and
unloading without the true owner's permission, and shared the area with the
true owner's loading and unloading activities, the court might have concluded that
the use was not hostile, but in fact permissive.
Here, however, the court
had the additional evidence that the user believed, albeit mistakenly, that the
easement granted it the authority to conduct such activity, and as a
consequence the use clearly was not based upon permission, but on a belief in
title.
Comment: Note the focus on
the mental state of the adverse user. The court doesn't tell us whether any of
the prescriptive period ran during the time that the servient estate was held
by a successor.
From the standpoint of the successor owner of the property, the
use might well have been permissive, since it had not been a party to the original
negotiations.
It is hard to argue with
the result, here, since both sides were equally violating the "no
parking" constraint placed upon both of them, and consequently the right
of loading and unloading seemed clearly recognized. But if only one user is
involved, we should note that this case stands for authority that the mental
state of the adverse user will confirm a hostile intent, even when not
communicated to the other side.
The editor concurs in this
view of prescriptive rights, as the editor favors the view that modern adverse
possession and prescriptive use cases ought usually to be based upon the
"building of a claim of right" by the behavior of the adverse user,
and not upon the negligence of the true owner in failing to defend.
EASEMENTS; PRESCRIPTION; REQUIREMENT OF EXCLUSIVENESS: Although test for easements by prescription
may include requirement of "exclusive" use, in fact such requirement
means only that the right of the claimant to continue the use does not depend upon
a like right in others.
Plymouth Canton Community
Crier Inc. v. Prose, 2000 WL 1458810 (Mich.App.)
The requirement of
"exclusivity" appears frequently in the traditional statement of the
test for prescriptive use, and often creates some confusion when the claimed
prescriptive use is shared with others. The Michigan statement of the meaning
of the requirement strikes the editor as clear and useful.
Readers are urged to respond, comment, and argue with the daily
development or the editor's comments about it.
Items in the Daily Development section generally are extracted from the
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