Prescription for a Prescriptive Easement

April 15, 2019 § Leave a comment

A prescriptive easement is one acquired essentially by adverse possession. The COA’s decision in Watts v. Jackson, decided March 19, 2019, has such an excellent, concise statement of the law of prescriptive easements that I thought you might find it useful to have it on hand. Judge Westbrooks wrote the opinion (edited by me):

¶6. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶32) (Miss. Ct. App. 2017). “To acquire property by adverse possession or by prescriptive easement the claimant must show that the possession was: (1) open, notorious, and visible; (2) hostile; (3) under claim of ownership; (4) exclusive; (5) peaceful; and (6) continuous and uninterrupted for ten years.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005). “These elements must be proven by clear and convincing evidence.” Mayton, 247 So. 3d at 322 (¶32). “Clear and convincing evidence is such a high standard of proof that even the overwhelming weight of the evidence does not rise to the same level.” Id.

. . .

¶8. The Mississippi Supreme Court has held that all six elements must be proven for a prescriptive easement to be valid. See Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999). In its order, the chancery court does not break down the elements required, and this Court has held that when “the chancellor did not state any specific findings of fact concerning these six elements . . . we will proceed on the assumption that he resolved all such fact issues in favor of the appellee.” Rawls v. Blakeney, 831 So. 2d 1205, 1207 (¶8) (Miss. Ct. App. 2002).  . . .

A. Open, Notorious, and Visible

¶9. The supreme court has held that “it is not necessary, in order to establish an easement by prescription, that the way has been in constant use, day and night, but it may be established by such use as business or pleasure may require.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Browder v. Graham, 204 Miss. 773, 780 (1948)).  . . .

B. Hostile

¶10. “Hostile use is use that is inconsistent with the title of the servient-estate owner.” Threlkeld, 992 So. 2d at 1239 (¶18). “Use of property that is permissive prevents a
prescriptive easement from forming.” Id. “Use by express or implied permission or license, no matter how long continued, cannot ripen into an easement by prescription, since adverse use, as distinguished from permissive use, is lacking.” Id. (internal quotation marks omitted).  . . .

C. Under the Claim of Ownership

¶11. “One claiming a prescriptive easement need not claim to own the land itself, but he or she must claim to own an easement.” Id. at 1239 (¶21) (quoting Delancey v. Mallette, 912 So. 2d 483, 488 (¶16) (Miss. Ct. App. 2005)).  . . .

D. Exclusive

¶12. “For a prescriptive easement, ‘exclusive’ does not mean that no one else used the road, but that ‘the use was consistent with an exclusive claim to the right to use.’” Threlkeld, 992 So. 2d at 1239-40 (¶22) (quoting Moran v. Sims, 873 So. 2d 1067, 1069 (¶10) (Miss. Ct. App. 2004)). Moreover, “[w]e conclude that the distinction to be made when using the term exclusive as it relates to a prescriptive easement does not mean to keep all others out, but to show a right to use the land above other members of the general public.” Keener Properties L.L.C. v. Wilson, 912 So. 2d 954, 957 (¶8) (Miss. 2005) (internal quotation marks omitted).  . . .

E. Peaceful

¶13. “‘Peaceful’ is defined as ‘marked by, conducive to, or enjoying peace, quiet, or calm.’” Biddix v. McConnell, 911 So. 2d 468, 477 (¶25) (Miss. 2005) (quoting Webster’s
Third International Dictionary 1160 (1986)).  . . .

F. Continuous and Uninterrupted for Ten Years

¶14. “A prescriptive easement vests when the adverse use has been continuous and uninterrupted for a period of ten years.” Threlkeld, 992 So. 2d at 1240 (¶24) (quoting
Delancey, 912 So. 2d at 489 (¶18)).  . . .

The court reversed the chancellor’s grant of a prescriptive easement. The COA held that Jackson had failed to prove that his use of the easement was hostile or exclusive.

 

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