Daily Development for
Monday, March 30, 1998

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

Note that there are four cases reported here, each of them a recent prescriptive easement decision in various western jurisdictions.

EASEMENTS; CREATION; PRESCRIPTION; PERMISSION: Open use of a right-of-way for the prescriptive period, even where there is no evidence as to how the use began, raises a presumption that the use was adverse and under a claim of right, shifting the burden to the owner of the servient estate to prove the claimants' use was permissive, but this presumption is countered by evidence that claimant was part of a general group of users, as in that case a "general permission" is assumed.

Marshall v. Blair, 946 P.2d 975 (Idaho 1997).

Blairs and the Marshalls, who resided on adjacent twenty acre tracts, accessed their property though Kirwan Lane, a graveled, single-lane road. Kirwan Lane crosses the Blairs property, extends past the property of others, and ends at the Marshall property. Shortly after the Marshalls purchased their property, the Blairs erected a gate across Kirwan Lane. The gate was located so that all of Blair's neighbors who regularly used Kirwan Lane could continue. The gate, however, prevented the Marshalls from accessing Kirwan Lane. The Marshalls filed an action claiming that they had a prescriptive easement and a boundary by acquiescence to use Kirwan Lane as ingress and egress to and from their residence.

To establish a private prescriptive easement in Idaho, a claimant must present evidence of open, notorious, continuous, and uninterrupted use under a claim of right and without the knowledge of the owner of the servient tenement for the prescriptive period of five years.

The requirement of "claim of right," in cases such as this, simply is that the claimant use the easement without permission of the servient owner. The court reached its conclusion of prescriptive usage here by a sort of "ping pong" presumption contest.

The court first stated that proof of open, notorious, continuous, and uninterrupted use of the way for the prescriptive period, without evidence as to how the use began, raises a presumption that the use was adverse and under a claim of right. Here, the court reasoned, because no one knew how the use of Kirwan Lane began, a presumption of adverse use arose, shifting the burden of proving that the use was permissive to the Blairs.

The Court further found, however, that the collective use of a roadway by the various landowners adjoining Kirwan Lane, and their invitees and guests invitees and guests falls within the Idaho "public use exception," negating any presumption of adverse use by the individual claimant. The court acknowledged that the only persons using the property were adjacent owners or invitees and guests of those owners, and that use by adjacent landowners does not establish a "public use;" but nevertheless, based upon earlier Idaho precedent, the court concluded that the presence of the invitees and guests established public use. Accordingly, there arose a counterpresumption that the Marshalls used Kirwan Lane with the Blairs' permission, and the burden shifted back to the Marshalls to demonstrate that they had established a prescriptive right to use Kirwan Lane.

The court then sealed the case by finding that Marshalls rebutted any presumption of permissive use. In reaching that decision, the court considered the following factors: all construction materials for the Marshalls' home were delivered via Kirwan Lane; an entranceway from Kirwan Lane onto the Marshalls' property existed years before the Marshalls purchased the property; the Blairs had posted no trespassing signs at the entrance to Kirwan Lane and that the Marshalls used Kirwan Lane in derogation of the signs posted by the Blairs; and the Marshalls and their predecessors have cared for their portion of Kirwan Lane beyond the property benefitting other neighbors. The Marshalls and their predecessors' use was open, notorious, continuous, uninterrupted, under a claim of right, and with the Blairs' knowledge of the prescriptive period of five years. The Idaho Supreme Court held that the Marshalls rebutted any presumption of permissive use and that they are entitled to a prescriptive right to use Kirwan Lane for access to and from their home and for any related agricultural pursuits that they conduct on that property.

Comment 1: Other facts recited by the court appear to indicate that this really is a case of an easement reserved by implication. It is difficult to see why the court worked so hard to find a prescriptive use here. Perhaps the trial court had some problem with the credibility of witnesses on the implication issue.

Comment 2: The leading case in Idaho on the "public use exception" is Simmons v. Perkins, 118 P.2d 740 (Idaho 1941). The Simmons court noted that absent an express grant of permission, the regular crossing of another's property is generally presumed to be an adverse use. However, as an exception to this general rule arises where the owner "constructs a way over [the land] for his own use and convenience, the mere use thereof by others which in no way interferes with his use will be presumed to be by way of license or permission." 118 P.2d at 744. The Court further said that a claimant who uses a road in common with the public, and who does not undertake any "decisive act ... indicating a separate and exclusive use on his part," falls within this presumption of permission. Id. Accordingly, his use is not adverse to the landowner and cannot ripen into a prescriptive easement. Some courts have stated this doctrine in terms of a requirement that the prescriptive easement claimant's use be "exclusive" in the sense that it not performed in conjunction with a general public use. Of course, in some cases, the general public use may itself be prescriptive. But in Idaho, apparently, there is no presumption of hostility arising from general public use, while there is such a presumption arising from individual use.

Compare: *Lilly v. Lynch, 945 P.2d 727 (Wash. A.P. 1997),*where the owner of lake property underlying part of a boat ramp had permitted parties with use rights in the balance of the boat ramp to use his area. The court viewed the original permission as a grant of permanent right, albeit oral and informal, and consequently viewed the use by the permittee as under claim of right, and therefore such permittees had established a prescriptive right that was good as against a transferee of the party who gave the original permission. Note that in this case there was evidence that the prior owner had indicated, in a community association meeting, that he would file for record a "letter against interest" stating that the neighbors had a permanent right to use his portion of the dock - but he never did file the letter. At trial, the prior owner denied making such statements. (Comment: Wouldn't the transferee of the dock have a warranty claim against his prior owner in this case?) Note also that in this Washington case there was no concern that the prescriptive usage was made by a group, likely because the claim of right was vested in the group. Compare: * AB Cattle Co. v. Forgey Ranches, Inc., 943 P.2d 1184 (Wyo. 1997),* which held that mere continuous use of an easement does not rebut the presumption in Wyoming that such use was permissive. A friendship had existed between the holder of the "dominant estate" and the predecessor of the holder of this "servient estate." The holder of the "servient estate"even plowed the road up to the house of the "dominant estate" holder. The court deduced from this evidence that, despite claimant's continuous use of the road across the defendant's property, there was no indication that such use was hostile and adverse. The court noted that prescriptive rights and easements are not favored by law and that "neighborliness and accommodation" are "landmarks of our western lifestyle." Therefore, the court held that without evidence of hostile and adverse use, no easement by prescription was established.

EASEMENTS; ENFORCEMENT; MALICIOUS PROSECUTION: So long as satisfaction of the conditions for finding of an easement by a prescription have not clearly been established, servient owner's initiation of prosecution for trespass for using the easement will not rise to the level of malicious prosecution.

Jordan v. Bailey, 944 P.2d 828 (Nev. 1997).

This case centers on a debate over access over plaintiff's property to maintain a water system. Plaintiff's property contains several paths to maintain such water system, and plaintiff eventually prohibited use of certain paths so as to maintain his privacy. A long debate ensued over which paths were deemed to be subject to averse possession. With respect to the roadway, the Nevada Supreme Court held that adverse use of the property could be inferred without further evidence.

The court held, however, that the arrest of one of the potential adverse possessors for trespass did not constitute malicious prosecution as, given the uncertain nature of the adverse possession claim, the property owner had legally tenable grounds to charge the proposed adverse possessor.

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