by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; EXTINGISHMENT; PRESCRIPTION: There can be no adverse use extinghishment of an express easement where the dominant tenant has never initated use of the easement. Mueller v. Hoblyn, 887 P.2d 500 (Wyo. 1994). The express easement started as an "open easement" - the deed gave no specific location, but described a twenty foot wide road. Thereafter, the dominant tenants used a twenty foot wide dirt road to get to their property (the court does not indicate who built that road). Although the dominant tenants, at least, believed that this road ran across the servient property, it apparently did not. They were trespassing on neighboring property.

Later, the dominant tenants subdivided their property, and in the deeds of the subdivided parcels described the easement by metes and bounds. These deeds, however, described an area within the servient tenant's property - an area, of course, that was other than the existing dirt road.

Still later, the easement users found that the existing road was not a convenient access, and had a survey done. They then discovered that the road was not across the servient owners' property, and brought suit to "open up" the easement - apparently at the location identified in their deeds.

The servient tenant had drilled a well in the center of the described easement area. The lower court held that this well was an adverse use that terminated the easement.

Held: Where the dominant tenants had made no use or demand to use the easement area, the servient tenant had complete freedom to use it as desired - therefore, there could be no adverse possession. The dominant tenants are entitled to move their access over to the easement described in their deeds.

Note: Although the court makes nothing of the fact, it appears to accept the notion that the dominant tenant had "located" the easement by describing it in its deeds to its transferees, even though the servient tenant did not participate in those deeds. Thus, the court seems to be assuming that the case is the equivalent of a case in which the original easement deed had located the easement with specificity.

A dissenter argues that the case misconstrues precedent that had found no adverse possesssion as against an unlocated open easement. Here, where the easement had already been located, the dissent argues, the policies supporting adverse possession should permit the servient owner to establish a termination by prescription.

Comment: It appears the court needlessly "bit off" a difficult issue and creates uncomfortable precedent with it. It could have determined that there was no specifically located easement and permitted the dominant tenants to locate a new easement at a new location that was not inconvenient to the servient's interests. In fact, the case may be ripe for rehearing and reanalysis on this issue. But the dissent clearly concludes that what the court intended was to hold that even a specifically located easement cannot be terminated by adverse possession if it has not yet been put to use. The dissent correctly balks at this interpretation of the law. It needlessly creates a "dog in the manger" - a "prescription proof" interest that the dominant tenant retains no matter how concrete and adverse the activities of the servient tenant in blocking access.

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