Daily Development for
Tuesday, August 12, 1997

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

DIRT would like to know if any states other than Maine continue to impose the "acquiesence" requirement for prescriptive easements.

EASEMENTS; CREATION; PRESCRIPTION; REQUIREMENT OF HOSTILITY; ACQUIESENCE: Maine continues to require owner's "acquiesence" as element of prescriptive easement; and owner's objection to public use of right of way prevents running of prescriptive period, even though owner never brought suit.

Glidden v. Belden, 684 A.2d 1306 (Me. 1996).

The case has interesting historical notes identifying 18th Century disputes over this property as central to the ultimate severance of Maine from Massachusetts as an independent state. Part of the disputed roadway was within a right of way laid out during that historical period. The court found that dedication of the purported road was ineffective since the public never "accepted" the dedication, which can be accomplished by a vote at a town meeting, or by the actual use and enjoyment of the land by the public for a length of time whereby the public accommodation would be materially affected by a denial or interruption of the enjoyment.

Claimant, however, established that his predecessors had made use of the road for a substantial period of time in recent history. The court, however, reiterated the "Maine Doctrine" for adverse possession, which requires that an adverse possessor have the state of mind of an owner. Naked unpermitted use is not sufficient in Maine. Here, the claiman's predecessors believed that they were in fact using a public road, and thus their use of it did not establish a prescriptive right.

Claimant himself did not labor under such misconceptions when he undertook his use of the property. The owner of the alleged servient land objected on a number of occasions to claimant's invasive activities, although for a substantial period of time he did not bring a lawsuit. Under Maine law, a prescriptive easement will not arise without the "acquiesence" of the servient owner. Long useage without objection will establish "presumed acquiesence," but the claimant could not show that, as the servient owner objected regularly.

Comment: Most other courts have abandoned focus on acquiesence or other subjective mentality requirements for adverse possession primarily because they bog down the courts with inquiries that often produce little but wasted time and more confusion. Clarity of rule ultimately will lead to efficiency of process. Since modern adverse possession doctrine is primarily used to clear title, clear rules would best serve the purpose.

Here, had the servient owner been subject to a legal requirement to bring a trespass action within an identified period of time, it is quite possible that he would have done so. If, in such case, he had not consulted a lawyer and learned the rule over a substantial period of time while continued trespasses were occurring, one might wonder how much he really cared about the property in the first place.

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