Prescriptive Easement Fail
April 21, 2020 § Leave a comment
Steve Thornton filed suit as trustee of a family trust to establish a prescriptive easement to property owned by the trust. The original chancellor stepped aside after a bench trial, and the parties agreed that the successor chancellor could decide the case on the record made before the first chancellor. Following a review of the record, the successor chancellor ruled that Thornton had failed to meet his burden of proof and ruled for the defendants. Thornton appealed.
The COA affirmed in Thornton v. Purvis, et al., handed down April 14, 2020. Here’s how Judge Jack Wilson’s opinion for the unanimous court addressed it:
¶21. “The standard and burden of proof to establish a prescriptive easement is the same as a claim of adverse possession of land.” Thornhill v. Caroline Hunt Tr. Estate, 594 So. 2d 1150, 1152 (Miss. 1992). To establish a prescriptive easement, the claimant must show use of the easement that “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. at 1152-53 (quotation marks omitted).
¶22. A chancellor’s finding that the evidence was insufficient to establish a prescriptive easement is a finding of fact that we review under “the substantial evidence/manifest error test.” Mayton v. Oliver, 247 So. 3d 312, 322 (¶33) (Miss. Ct. App. 2017). Under that test, we will not reverse unless the chancellor’s findings of fact are manifestly wrong or clearly erroneous or the chancellor applied the wrong legal standard. Darnell v. Darnell, 234 So. 3d 421, 423 (¶4) (Miss. 2017). We will “accept a chancellor’s factual findings unless—given the evidence in the record—we conclude that the chancellor abused his or her discretion, and no reasonable chancellor could have come to the same factual conclusions.” Bluewater Logistics LLC v. Williford, 55 So. 3d 148, 155 (¶24) (Miss. 2011).
¶23. Each of the elements of a prescriptive easement “must be proven by clear and convincing evidence.” Thornhill, 594 So. 2d at 1153. “‘Clear and convincing evidence’ is such a high evidentiary standard that it surpasses even the standard of‘overwhelming weight’ of the evidence.” Miss. Comm’n on Judicial Performance v. Shoemake, 191 So. 3d 1211, 1218 (¶26) (Miss. 2016). “Where the appealing party has such a burden at trial, he necessarily has a higher hill to climb on appeal . . . .” Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss. 1987). “Put otherwise, the minimum evidentiary offering from the unburdened appellee necessary for affirmance is less than it would be if the preponderance of the evidence rule applied.” Id.; accord Matthews v. Whitney Bank, 282 So. 3d 786, 794-95 (¶29) (Miss. Ct. App. 2019).
¶24. Thornton argues that we should abandon our usual, deferential standard of review in this case. He contends that we should review Judge Martin’s findings de novo because Judge Martin did not preside over the trial or personally observe the witnesses. However, the cases that Thornton cites are inapposite. For example, in Amiker v. Drugs For Less Inc., 796 So. 2d 942 (Miss. 2000), the Supreme Court held that “a successor judge does not possess the power to vacate an initial judge’s order granting a new trial where . . . the successor judge sits in an inferior position to the first judge.” Id. at 948 (¶22) (emphasis added). Judge Martin did not vacate any prior findings by Judge Walker. Rather, Judge Martin simply made findings of fact based on the evidence presented at trial and his view of the property—just as the parties agreed that he should.
¶25. In addition, in Gulf Coast Research Laboratory v. Amaraneni, 877 So. 2d 1250 (Miss. 2004), the Supreme Court held that the record was “woefully inadequate” to support the findings of a successor judge because, among other issues, the court reporter had failed to transcribe most of the original trial. Id. at 1252-54 (¶¶10-15). Therefore, the Supreme Court vacated and remanded the case for a new trial. Id. at 1254 (¶15). The problem in Gulf Coast
Research Laboratory was the adequacy of the record, not the standard of review. In this case, Judge Martin was provided the full and complete trial transcript, and the parties agreed that the record was adequate for Judge Martin to render a final decision. Thornton simply disagrees with the decision that Judge Martin rendered.
¶26. Although Judge Martin did not personally observe the witnesses, “[t]he rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility.” Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985). “The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise.” Id. There is no reason to believe that appellate second-guessing of such findings would do anything to improve their accuracy. Id. at 574-75. “In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one; requiring them to persuade [ten] more judges at the appellate level is requiring too much.” Id. at 575. The trial “should be the main event rather than a tryout on the road.” Id. (quotation marks and ellipsis omitted).
¶27. Thornton agreed that the record created at trial was adequate for Judge Martin to make findings and issue a final decision. That being the case, we apply our ordinary substantial evidence/manifest error test to those findings.
II. The chancellor did not manifestly err by denying Thornton’s claim.
¶28. The six elements of a prescriptive easement are set out above. Supra ¶21. To establish an easement by prescription, each of those six elements must be proved by clear and-convincing evidence. Therefore, the claim fails if the claimant fails to prove even one of the six elements. See, e.g., Miss. Sand Solutions LLC v. Otis, 248 So. 3d 813, 818-20 (¶¶19-29) (Miss. 2018); Paw Paw Island Land Co. v. Issaquena & Warren Counties Land Co., 51 So. 3d 916, 923-26 (¶¶27-41) (Miss. 2010); Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005); Sharp v. White, 749 So. 2d 41, 43 (¶9) (Miss. 1999); Watts v.
Jackson, 281 So. 3d 203, 206 (¶18) (Miss. Ct. App. 2019).
¶29. As noted above, the chancellor found that Thornton failed to prove four of the six elements of a prescriptive easement. As to the “open, notorious, and visible” element, the chancellor found in part:
The problem with proving this element is the intermittent use proven by the Plaintiff. . . . Most, if not all of the use which was specifically referenced by the Plaintiff or his family members related to hauling hay or harvesting corn. This use is limited to a few days each year. No evidence was shown of daily, weekly or even monthly use or ongoing maintenance by the Plaintiff that might have put property owners on notice that someone was using the roadway. Considering the rural nature of the surrounding area and the lack of residences along the roadway, the Court cannot say that use a few days a year constitutes clear and convincing evidence of open, notorious and visible use.
¶30. A party claiming an easement by prescription is not required to prove “that the way has been in constant use, day and night.” Threlkeld v. Sisk, 992 So. 2d 1232, 1238 (¶17) (Miss. Ct. App. 2008) (quoting Rawls v. Blakeney, 831 So. 2d 1205, 1210 (¶16) (Miss. Ct. App. 2002)). However, the claimant is required to establish that the servient landowner knew of and acquiesced in the adverse use or that the adverse use was “so open, notorious, visible,
and uninterrupted that knowledge and acquiescence will be presumed.” Myers v. Blair, 611 So. 2d 969, 971 (Miss. 1992) (quoting McIntyre v. Harvey, 158 Miss. 16, 21, 128 So. 572, 573 (1930), overruled on other grounds by Rutland v. Stewart, 630 So. 2d 996, 999 (Miss. 1994)). We cannot say that the chancellor in the present case manifestly erred in finding that Thornton failed to establish this element of his claim by clear and convincing evidence.
¶31. To begin with, there is substantial evidence to support the chancellor’s finding that the Thorntons’ alleged use of the road was limited to a few days per year, which would not have provided sufficient notice to other landowners in this rural, sparsely populated area. Moreover, Timothy Patterson and Royce Welch described the path as just a “little pig trail” or “little trail” until the mid-1970s, when an oil company improved and widened it. Patterson
denied that the Thorntons used the path to plant or harvest crops or hay while he lived there, and Welch similarly denied that the Thorntons had ever grown hay, corn, or other row crops in the area. Accepting their testimony as true, nothing about the use or appearance of the road should have alerted neighboring landowners to any significant adverse use of their properties. The testimony of Patterson and Welch conflicted with testimony of Thornton and his other witnesses, who described driving down a gravel road via truck, tractor, and wagon even before the improvements in the 1970s. However, the mere presence of conflicting evidence does not render the chancellor’s findings manifestly erroneous. Rather, such conflicts must be decided by the trial judge, as the fact-finder. E.g., Powell v. Campbell, 912 So. 2d 978, 981 (¶9) (Miss. 2005). Therefore, we cannot say that the chancellor manifestly
erred by finding that Thornton failed to prove, by clear and convincing evidence, that his family’s use of the property was open, notorious, and visible.
¶32. All six elements of a prescriptive easement must be proved by clear and convincing evidence. If the claimant fails to meet his burden on any one element, the claim fails. We hold that the chancellor did not manifestly err by finding that Thornton failed to establish by clear and convincing evidence that his family’s use of Alvie Rankin Road was open, notorious, and visible. Therefore, we need not address the chancellor’s findings regarding
the remaining elements of Thornton’s claim. The judgment of the chancery court denying a prescriptive easement is AFFIRMED.
Lots of nice, helpful law there, and a fine exposition on the law of prescriptive easements and adverse possession.