Daily Development for Monday, October 23, 2006
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

PRESCRIPTIVE EASEMENT:  Owner’s creation of a berm and ditch to block driveway for a short time is sufficient to interrupt statutory period to obtain prescriptive easement. 

Trask v. Nozisko, 134 P. 3d 544 (Colo. App. 2006).

This dispute arose between adjacent landowners in a rugged area of Colorado.  The adverse claimant’s predecessor-in-interest purchased a parcel known as the Maxwell Lode Mining Claim in 1970, and constructed a geodesic dome that served as a seasonal cabin on the parcel.  The portion of the Maxwell Claim on which the cabin was located was also the site of several other mining claims.  Apparently the legal descriptions of these claims overlapped, and there were no express deeds to any of them. 

The adverse claimant purchased the property constituting  the Maxwell Claim parcel (apparently by deed)  in 1980.  In 1984, the adverse possessor constructed improvements to the cabin, which made it extend to the Maxwell property line.  The adverse claimant also used a dirt road constructed by her predecessor to access the property and parked cars in an area outside of her described boundaries. 

The owners of neighboring parcels became aware that the adverse claimant might seek to obtain title by adverse possession, and one of them erected a dirt berm on land the adverse claimant used as a driveway in 1984.  Evidence submitted at trial showed the berm remained in place for a period lasting between three days and three months.  The adverse claimant removed the berm using a shovel.  Since it was constructed with earth moving equipment, and removed by a hand shovel, it appears that one could conclude that the adverse claimant promptly and assiduously set to work to remove the obstacle.

One of the other owners filed a quiet title action.  This dispute eventually evolved into three separate claims to land: one a “typical” adverse possession claim to lands bordering the cabin, the next a prescriptive driveway easement, and the final a prescriptive parking easement.

The trial court found the adverse claimant had obtained title through adverse possession to lands bordering the cabin, and had a prescriptive easement to the dirt driveway and parking area.

The court of appeals held that the evidence of activities conducted on the parcels bordering the cabin by the adverse claimant, which included refuse clean up, removal of trees and brush, the installation of flower gardens, fencing, structures, and pathways did not prove the claimant’s rights through adverse possession.  The court found that while the activities might have established adverse possession, the adverse claimant could not establish when those activities started. 

On the second claim for a prescriptive driveway easement, the court found that the creation of a dirt berm, even though it might not have stood for more than a few weeks, precluded the adverse claimant from receiving a prescriptive easement for driveway access.  Finally, the claimant did win rights to the parking easement, located on a different portion of the property, established through uninterrupted use.

The important issue in this case is really the court’s discussion of how long a physical obstruction must be in place to interrupt the statutory period regarding adverse use.  The court noted that some courts have held that a physical obstacle must be effective in interrupting adverse user in order to bar a prescriptive claim.  There is an interesting tale of a North Carolina case in which an owner kept erecting barriers which prescriptive users continuously evaded, so as to confirm adverse user.  But other cases, following the reasoning of Oliver Wendell Holmes, have concluded that a “true owner” need only take some concrete action to interrupt an adverse use in order to terminate a prescriptive easement claim.  To require more - such as preservation of a barrier for a significant time “invites confrontation, which can be unpleasant, violent, dangerous and in some instances even deadly.” 

The court quoted Justice (then Judge) Oliver Wendell Holmes in support of the view that only a representative blockage is required: 

“A landowner, in order to prevent [the gaining of a prescriptive right of way] is not required to battle successfully for his rights.  It is enough if he asserts them to the other party by an over act, which, if the easement existed, would be a cause of action.  Such an assertion interrupts the would-be dominant owner’s impression of acquiescence, and the growth in his mind of a fixed association of ideas; or, if the principle of prescription be attributed solely to the acquiescence of the servient owner, it shows that the acquiescence was not a fact.”

The court rejected the Restatement of Servitudes approach, requiring an effective blockage, and in fact took pains to analyze whether prior Colorado judicial citations to the Restatement constituted an adoption of the entire section on prescriptive easements.  It concluded, of course, that they did not so constitute an adoption.

Comment 1: Frankly, this is news to the Editor, who has been teaching his class lo these many years that an effective interruption is necessary.  In fact, he uses as a model a bar exam question where a “true owner” verbally chases off a consistent trespasser on one day, only to have the trespasser return consistently to establish (according to the bar examiner’s answer) an effective prescriptive claim except in “lost grant” jurisdictions. 

This case doesn’t go so far as to say that a simple verbal warning is sufficient to interrupt an adverse user, but it doesn’t say that’s not so either, and some of the cases it cites to discuss such a possibility.

It may be that the uncertainty of the circumstances surrounding a confrontation concerning such trespasses - whether indeed the trespasser is driven away, or simply leaves temporarily to avoid a fistfight - is precisely what led the Restatement authors to conclude that something more than a simply symbolic confrontation is necessary. 

Comment 2: This case doesn’t necessarily say that a simple warning is enough, but it really doesn’t say what beyond that is required.  The berm in question was sufficiently effective that the adverse possessor’s husband had to park his car and climb over it on the day it was built.  But the version of the facts adopted by the trial court suggests that the true owner promptly attacked the berm with a shovel and never truly submitted to its blockage. [The court criticizes the trial court for accepting verbatim the adverse possessor’s proposed findings, so we don’t have a clear factual premise, unfortunately, in this very fact driven analysis.]

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