Daily Development for
By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of
Of Counsel: Blackwell Sanders Peper Martin
Kansas City,
prandolph@cctr.umkc.edu
EASEMENTS; CREATION; PRESCRIPTION; REQUIREMENT OF HOSTILITY;
PERMISSION: The nature of a claimed prescriptive use as hostile or permissive
will be established as of the original use; and a use once commenced
permissively cannot ripen into a hostile use; but where there is no evidence as
to whether a long continued use originated with permission or not, the court
will assume that the use was adverse.
Wilson v. McElyea, 815 So. 2d 462
(
Evidence showed that the roadway in question had been in
existence for over fifty years. For
about 30 of those years, a party named Daniel had owned the servient
parcel and a party named Williams had used the road.
Much of the evidence at trial had to do with the
relationship of these individuals, which was very cordial. It was alleged that the use during this
period of time was permissive, and thus prescriptive use could not be shown.
The court noted that it appeared that the use of the road
had predated the ownership of either Daniel or Williams of their respective
parcels, and that there appeared to be no evidence of whether the use
originated under permissive or hostile terms.
The trial court had concluded that, in light of this fact, the party
alleging prescription had not shown hostility.
The Court of Appeals disagreed, holding that where there is
no evidence demonstrating that a use by one not an owner of property is
permissive, it will be assumed to be hostile.
Although there may have been some evidence that Daniel had later given
Williams permission during the use period, the court concluded that this
evidence was of little significance,
because a servient tenant cannot turn a hostile use
into a permissive one simply by conferring permission. On this last point, the court cites no
authority. Here is the entire
discussion:
"Likewise, it would seem plain that the owner of the servient estate may not change the character of use that
began as hostile under a claim of right by the simple act of unilaterally
giving permission for future use since the character of the use is more
properly determined from the standpoint of the user and not the owner of the servient estate."
The court remanded the case for further evidence on the
question of hostility.
Comment 1: Surely it is an overstatement to conclude that
the relationship between Daniel and Williams was not relevant because neither
was around when the easement commenced.
It appears that both parties owned their respective interests at a
critical point in the alleged development of the prescriptive use. Hostility must be continuous.
Although it might be correct to say that a servient tenant may not unilaterally convert a use
commenced under claim of right into a hostile use, it certainly could be the
case that the dominant user might have acknowledged the ownership of the servient user and agreed that his use was not under a claim
of right. The question is whether such
an interpretation of the dominant's owner state of mind can be drawn from the
facts. The editor suspects that there
are circumstances in which this in fact could occur, and thus the evidence of a
close personal relationship between the two parties, although perhaps not
enough, is a beginning.
Comment 2: For another fascinating twist on the theme of permission, holding that permission, once conferred, does not terminate even when successive purchasers of the adverse possessor believe that they are possessing as owners, check out Pioneer Mill Company, Limited v. Dow, 978 P.2d 727 (Hawaii 1999) the DD for February 24, 2002, on the DIRT Website: http: www.umkc.edu/dirt. This is an adverse possession case, not a prescriptive easement case, and focuses, obviously, on the state of mind of the true owner, rather than that of the adverse user.
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 Quarterly Report on Developments in Real
Estate Law, published by the ABA Section on Real Property, Probate & Trust
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