Daily Development for Friday, August 27, 1999
A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
EASEMENTS; ACQUISITION; PRESCRIPTION; REQUIREMENT OF HOSTILITY: In addition to use in defiance of the servient owner's wishes, "hostility" can take the form of a statement of irrevocable right of use, whether or not it takes the form of an attempt to grant an easement .
Walker v. Hollinger, 968 P. 2d 661 (Idaho 1998).
A developer acquired a large ranch, and subdivided parts of it. The subdivision plats showed a road that corresponded to a preexisting road (the "stem road") on the ranch, leading to another road that connected to the highway. Although the facts of the case are unclear on the point, the court appears to view both of these roads as part of a single system called the "Daggett Creek Road." (The original statement of facts appears to view the roads as separate, but later the court refers to both of them by that name.) The subdivision declaration indicated that the Daggett Creek Road was "only a seondary or emergency means of access," as there was a new road built leading directly to the highway from the subdivision property. Nevertheless, the Daggett Creek Road proved convenient for many purposes, and was commonly used by the subdivision occupants.
A portion of the stem road crossed property that was part of the original ranch but was never subdivided. This portion, of course, was never described in the subdivision plats. If it was indeed part of the Daggett Creek Road, then it was described in the declaration. Whether or not the subdividers described it in any documents, they clearly permitted the subdivision occupants to use the road, and the subdivision homes association maintained the road, including the part over nonsubdivided property.
From 1989 to 1992, the developers owned the unsubivided parcel over which the road ran. In 1992 they sold it to Hollingers. The use by the subdivision occupants continued for a time, but three years later, the Hollingers elected to block the roadway. The prescriptive period for easements in Idaho is five years (short periods are common in western states.) Thus it appears that some of the Hollinger's ownership was relevant. They never gave express permission to anyone to use the road, so the question is whether the use was permissive during the time that the developers owned the servient property.
The Court held that the subdivision developers intended to grant a permanent right to allow the homeowners to use the road in question and not a mere revocable license. It interpreted the facts to be that the homeowners interpreted the language in the CCRs as conveying a permanent right to them to use the road over the owners' property as a secondary means of access to their property. In the view of the court, it was the understanding of the users as to whether their use was adverse, rather than the understanding of the owners (the developers). So the court only had to look at the objective information available to the users. Was it reasonable for them to conclude that they had a "claim of right" to use the road?
The court alluded to the New Restatement on Servitudes Section 2.17, comment a, for the proposition that an "intended but imperfectly created" servitude gives rise to a claim of right supporting a prescriptive claim. The trial court had relied upon that theory. But ultimately the Idaho Supreme Court concluded that whether or not this case fit within the Restatement category was moot, since preexisting Idaho law support a prescriptive easement finding here.
It is difficult to discern the difference between the Restatement theory and the Idaho court's discussion of precedent, but the emphasis perhaps is upon whether the servient owner intended to create an easement. Under the Restatement, presumably the answer would be "yes." But the Idaho court's discussion of the issue suggests that all that must be shown is that the prescriptive user believed that the servient owner had given a right of use, as opposed to permission.
There were two (of five) dissenting judges, who argued that the state of mind of either the users or the developers was irrelevant. The only question was whether there was some basis upon which to conclude that a claim of right had been created. The dissenters were of the view that nothing in the record showed that a right of use, valid or not, had been communicated or conveyed to the users. As the use clearly was with the permission of the developers, the use was not hostile. Consequently, lacking either hostility or claim of right, the use failed to ripen into a prescriptive easement.
Comment: The editor views the majority opinion as correct insofar as the "claim of right" concept is concerned. In fact, one could argue that an actual right in the form of an implied easement arose, but we have inadequate evidence upon which to judge whether the traditional requirement of "reasonable necessity" would have been satisfied had that been the theory.
The ambiguity concerning which part of the road constituted Daggett Creek road makes the opinion difficult to understand clearly, but it does seem clear that the use of the road was not pursuant to an understanding that the developers permitted it for only a temporary period, but rather under the belief that a permanent right had been created. The editor is always uncomfortable with the creation of permanent rights of adverse possession or prescription on the basis of a five year statute, but that issue is for another forum.
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