Daily Development for
Thursday, December 17, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri

EASEMENTS; ACQUISITION; PRESCRIPTION; HOSTILITY: Although normally a prescriptive easement can be obtained when the use of the easement is made without recognition of the rights of the owner of the servient tenement, public policy dictates that where the use is conducted in violation of an express injunction already obtained by the true owner of the property, no prescriptive easement will arise.

Crandall v. Gould, 711 A.2d 682 (Conn. 1998).

In 1960, the owner of a private way obtained an injunction against his neighbor to prevent his neighbor from interfering with the owner's use of the right of way or with a fence that the owner had constructed on the boundary with the neighbor. (The facts do not indicate whether the neighbor had an interest in the fee underlying the right of way, but the terms of the right of way did require the construction of a "good and substantial fence.") Four years later, the neighbor cut a hole in the fence and commenced using a portion of the right of way for access to the neighbor's own property, and did so continuously for over the statutory period.

The Connecticut Supreme Court acknowledged that under the requirement that a prescriptive easement be established "under claim of right," a use hostile to the interests of the true owner of the property over which prescription is claimed is sufficient to establish a prescriptive right, if it meets the standards of notoriety and continuity for the statutory period. But it concluded that a special case exists if the use is undertaken in express violation of an existing injunction.

Here, there had been some argument below as to whether the adverse user's activities in fact violated the injunction, but the court concluded as a matter of fact that they had violated the injunction. Under the circumstances, the court set aside the ordinary rules of prescriptive easements. It concluded that, although typically the remedy for violation of an injunction sounds in damages, another appropriate consequence is denial of any judicial decree furthering the objectives that the violator was pursuing in violating the injunction. Consequently, the court here refused to recognize the prescriptive claim.

"This court must not, and cannot in good conscience, encourage or condone, through its interpretation of statutes or prior cases, conduct that violates a valid court order for the purpose of facilitating the acquistion of a legal right or for any other purpose."

As an alternative analysis, the court also pointed to a statutory provision in Connecticut that states that a owner of land over which another is claiming an easement can interrupt the use and prevent the running of prescriptive claim by the simple act of notice in writing. Here, of course, the true owner did not provide written notice sufficient to suspend the running of prescription, but the court viewed a holding in this case that the claimant could violate an injunction and still get a prescriptive right as inconsistent with the public policy objectives reflected in the statute.

Comment: The Connecticut decision is right on target. Where a party has been personally enjoined from invading the property of another, any further invasions are clearly the acts of a thief, and there is no reason to stretch the policy of prescriptive easements to cover such actions.

Furthermore, isn't the Connecticut statute concerning interruption of hostile use a good idea? Why should it be necessary for a landowner to bring a lawsuit to protect itself from the long term consequences of invasive activity? Isn't a simple notice enough? Again, the real purpose of adverse possession law and prescriptive easement law is to clear title in favor of persons who really ought to have good title, but for some reason based upon mischance or good faith mistake, do not have such title. Although, in order to make the doctrine work efficiently, it is sometimes possible for parties to "steal title," that is not the purpose of the doctrine and policies that more narrowly direct its operation away from land thieves are salutory.

The state statutory scheme makes clear that one cannot acquire a prescriptive easement in a situation where the party engaged in the adverse use has received formal and adequate notice of the property owner's intent to prevent an easement from being acquired by prescription. The owner of the land over which a right of way is claimed or used may give notice in writing to the person claiming or using the privilege of his intention to dispute the right of way. Such a notice will be deemed an interruption of the use and prevents the acquisition of a right of continuous use for any length of time thereafter. The Crandall court applied this concept to conclude that the existence of a permanent injunction, which had formally been issued to enjoin the use of a private right of way, was sufficient to prevent acquisition of an easement through adverse use by the enjoined parties.

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