Daily Development for
Tuesday, September 30, 1997

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

EASEMENTS; CREATION; PRESCRIPTION; REQUIREMENT OF HOSTILITY; PERMISSIVENESS: A landowner may rebut a prescriptive easement claim by establishing that the use of the claimed easement was permissive at the time the use began, even if it began under a predecessor to the current adverse claimant..

Rettig v. Kallevig, 936 P.2d 807 (Mont. 1997).

Adjoining landowners agreed that one owner could establish a road over the neighbor's property to gain access to a paved highway, which access road was expressly permitted by the neighbor. The party establishing the road subsequently sold his parcel to a third party purchaser. There was a dispute in the testimony as to whether the purchaser was informed at the time of sale that the access road was permissive. The purchaser continued to use the access road and maintained it in substantially the same fashion as his predecessor in interest. The neighboring landowner never discussed the use of the access road with the purchaser or objected to his actions. Eventually, the purchaser plowed under another access road and relied entirely on this road.

Later, after the running of the limitations period, the neighboring landowner sold his land, and his successor in interest revoked permission to use the access road and locked a gate across the access road. The purchaser of the property benefitted by the road claimed that it had ripened into an easement by prescription.

The Supreme Court of Montana held that while a prescriptive easement can be established by open, notorious, exclusive, adverse, continuous, and uninterrupted use for Montana's statutory five-year period, a landowner may rebut a prescriptive easement claim by establishing that the use was permissive. The court found that the purchaser had in fact been informed that the road was a permissive one, but really did not rely upon that fact. Rather it focussed on the mental state of the alleged servient owner. That owner had no reason to believe that the use of the road was inconsistent with the original permission. The purchaser's use of the road was not consistent with the use initially permitted. The court commented that it is not necessary to make periodic, express grants of permission to maintain the permissive character of the use of a road.

A strong dissenter would have found otherwise, concluding that it is necessary, when land changes hands to reestablish that uses permitted to a prior landowner are also viewed as permissive when carried out by the successor. If permission is not communicated, in the view of the dissenters, then the servient party's toleration of the continued use is simple "acquiescence," which does not interrupt a prescriptive claim, and not "permission."

Comment 1: The editor concurs with the majority, which he believes also reflects the general view that once a use commences as permissive, the servient owner must be notified clearly that the use has become a hostile one. Neighborly accommodation should not become a trap for the unwary.

Comment 2: In the DD for yesterday, 9/29, the editor commented that the Oregon Court of Appeals in Faulconer v. Williams, 936 P.2d 999 (Or. Ct. App. 1997), got it wrong when it focussed on the attitude of the adverse user in determining whether a particular use was permissive. This was perhaps an overstatement. The adverse user must have a "claim of right," and belief in permission obviates that. What the editor should have said was that the Oregon court should not have focussed solely on the mental state of the adverse user. As this Montana case indicates, it is at least equally relevant (and usually more relevant) to focus on the mental state of the true owner in addressing claims that a particular adverse use is permissive. This is where most of the battles will be fought.

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 Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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