Prescription for an Easement

March 13, 2017 § 1 Comment

Mississippi is dotted with old churches that have fallen into disuse and even been abandoned as the congregation ages, moves away, and finds other associations. I posted about a typical example here only last month.

Some of the left-behind buildings are lovingly maintained by former members and family, but what keeps people involved with them in most cases is the church cemetery where ancestors and loved ones are interred.

Such was the case with Old Liberty Baptist Church, which had been established before 1854. In that year, Aaron Lott and his wife, Martha, deeded the 2 acres upon which the church had been built, and which included the adjacent cemetery, to the church’s “Committee of Arrangements.” The church later moved away, and the building was torn down, but the cemetery, which fronted on a public road, continued to be visited by people with an interest. Even so, there were only one or two burials there in the preceding 60-70 years. The cemetery was enclosed by a fence, with a gate that was accessible from the public road.

The Lott property, which surrounded the Old Liberty cemetery, descended to Johnnie Lott and his three daughters: Rita Deloach, Linda Douglas, and Cathy Grantham. After the daughters quitclaimed their interest to Johnnie, he later conveyed his interest to Cathy, reserving a life estate. “less and except 2 acres, more or less, comprising the cemetery.”

Johnnie Lott died in 2011, and in 2013, Cathy filed an instrument claiming that she controlled access to the cemetery. The Liberty Baptist Church formed an association to take responsibility for permanent maintenance, and the church deacons deeded its interest in the cemetery to trustees of the association for the purpose. The deed claimed a tract of 1.55 acres, as shown on an attached plat. Rita, sister of Cathy, participated in the process.

In the meantime, Cathy began locking the gate to the cemetery. After the lock had been cut off the gate seven times, Cathy’s husband removed the culvert and pushed dirt up blocking the gate.

Cathy filed suit, claiming that the cemetery property consisted of 1.25 acres, not the 1.55 acres claimed by the church. She claimed absolute authority and discretion in determining who, when, and how anyone should access the property. The association counterclaimed.

Following a trial, the chancellor granted the association title to the cemetery property by adverse possession, along with a prescriptive easement from the public road to the cemetery entrance. He also confirmed title in Cathy to certain other property in dispute. Cathy filed a R59 motion raising for the first time that she should be granted a prescriptive easement across the cemetery property, and a claim for slander of title. The chancellor overruled the motion, and Cathy appealed.

In Grantham v. Old Liberty Cemetery Association, decided February 21, 2017, the COA affirmed. On the issue of Cathy’s belated claim for a prescriptive easement, Judge Fair wrote for a unanimous court:

¶11. Grantham first argues she was entitled to a prescriptive easement across the Association’s property. “The evidentiary burden to establish a prescriptive easement is high.” King v. Gale, 166 So. 3d 589, 593 (¶20) (Miss. Ct. App. 2015). Grantham had to show by clear and convincing evidence she used the Cemetery tract to get to her property. Id. See Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). Further, she had to prove her use was “(1) under claim of ownership; (2) actual or hostile; (3) open, notorious, and visible; (4) continuous and uninterrupted for a period of ten years; (5) exclusive; and (6) peaceful.” Id. (citations omitted). We note that she did not assert any claim for an “easement of necessity” because she has significant access to a public roadway, and makes claim for a “non-exclusive” prescriptive easement, even though exclusivity is a required element of a prescriptive easement.

¶12. The chancellor notes pointedly that Grantham denied any claim to the Cemetery land itself, only asserting the location of boundaries and easements to it and arguing that the Cemetery occupied 1.25 of the 1.55 acres the Association claimed. And there was no evidence presented that Johnnie, from whom she derived her title, ever claimed any ownership of the Cemetery. In her appellate brief, she restates that she “has decided not to appeal the determination . . . that the fence lying south [of] the access road is the cemetery’s south boundary, but does appeal the denial of her ‘non-exclusive easement’ over the road to access her property.” Grantham had stated her father always fenced his property, and that the northern boundary of the property she inherited is also the southern boundary of the Cemetery. She also testified that he had a concrete pad poured to feed his cows and admitted that the concrete pad stopped just south of the fence in the very southeast corner of the fenced-in area of the disputed property. Occasionally, Johnnie let the cows out through the Cemetery gate. Prior to her father’s death, Grantham returned to the property once or twice a month and had little knowledge of what was going on while she was away.

¶13. A “prescriptive easement,” as noted above, is an easement obtained by adverse possession over another’s land. Like any other adverse possession claim, an owner’s permission to use the easement defeats a party’s claim. See Kendall v. May, 199 So. 3d 697, 700 (¶8) (Miss. Ct. App. 2016). The general public (or at the very least the descendants of those buried in the Cemetery) had entered the Cemetery without interference and with implied permission of the church for more than a century – until Grantham locked it and removed the culvert. Anyone who had ancestors buried in the Cemetery had the right to enter onto “family cemetery” property and visit an ancestor’s grave as well as to be buried in the Cemetery. Grantham, a direct descendant of Aaron Lott, specifically has such a right, with the same permission as any other descendant of an ancestor buried in the Cemetery, to drive across roads crossing Cemetery property. She has presented no evidence of any open, notorious, or exclusive occupancy of any portion of the Cemetery property for more than ten years, as determined by the chancellor. Consequently, she is entitled to no greater or lesser interest in an easement over parts of the Cemetery than any descendent of anyone buried there.

I brought this to your attention for several points:

  • In order to establish a prescriptive easement, it must be shown that the elements of adverse possession have been met as to the easement property. That in and of itself is a high bar. To make it even higher, the burden of proof is by clear and convincing evidence. This opinion is a good reminder of what must be shown.
  • To me, the chancellor was exceedingly generous to entertain Cathy’s claim for a prescriptive easement, raised as it was for the first time on a R59 motion. You simply do not get to reopen the case to raise new legal issues and claims on a R59 motion that could and should have been litigated at trial, unless there is newly discovered evidence that was unavailable at trial. The COA does not elaborate on the basis for the R59 motion, so we are in the dark as to what motivated it, but if it was simply to assert a new issue, it was out of bounds.
  • Likewise, at trial Cathy took the position that she asserted no interest in the cemetery property. She reversed that position in the R59 motion and asserted a claim for a prescriptive easement. That maneuver was barred by judicial estoppel, which holds that one may not take one position at one stage of the proceedings, and then take a contrary position at a later stage.
  • Finally, Cathy asked for a “non-exclusive easement” to the cemetery. That was really unnecessary, as Judge Fair pointed out, because she was entitled to access the property along with everyone else with ancestors buried there.

The COA also affirmed the chancellor’s dismissal of both parties’ slander of title claims.

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§ One Response to Prescription for an Easement

  • hale1090 says:

    A couple of years back a local hunter tried to assert an adverse possession claim against abandoned Presbyterian Church property which had been deeded to Lafayette County church in April 1861.The church was never built due to the Civil War.
    Fortunately our local chancellor insisted that the plaintiff serve the local Presbytery before a default was taken despite counsel for the hunter’s declaration that he did not know who to serve. The chancellor stopped the efforts to obtain a default and take the property.
    Not only is the burden to adversely possess high, chancellors have discretion to say, “not so fast.”

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