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.

 

Adverse Possession: How You Got There Makes All the Difference

January 9, 2018 § Leave a comment

The Joneses filed suit against the Pruitts claiming that they had acquired title to two parcels of the Pruitt’s land. They claimed adverse possession as to one part, and a prescriptive easement as to another.

The chancellor ruled in favor of the Pruitts, and the Joneses appealed.

in Estate of Jones, et al. v. Pruitt, decided September 26, 2017, the COA affirmed. For purposes of this post, we will focus on the permissive nature of the use. Judge Irving wrote for a more-or-less unanimous court (two judges “concur in part and in result without separate written opinion”):

¶13. The Joneses argue that the chancery court erred in denying their claims for adverse possession or a prescriptive easement with respect to the 455-foot roadway, and for adverse possession with respect to the deer-camp structure. Mississippi Code Annotated section 15-1-13(1) (Rev. 2012) provides:

Ten (10) years’ actual adverse possession by any person claiming to be the owner for that time of any land, uninterruptedly continued for ten (10) years by occupancy, descent, conveyance, or otherwise, in whatever way such occupancy may have commenced or continued, shall vest in every actual occupant or possessor of such land a full and complete title . . . .

“The standard and burden of proof to establish a prescriptive easement is the same as a claim for adverse possession of land.” Morris v. W.R. Fairchild Constr. Co., 792 So. 2d 282, 284 (¶7) (Miss. Ct. App. 2001) (citation omitted). In either claim, the following elements must be proven: that use of the property is “(1) under a 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.” Webb v. Drewrey, 4 So. 3d 1078, 1082 (¶12) (Miss. Ct. App. 2009). “The person claiming the possession has the burden of proving each of these elements by clear and convincing evidence.” Biddix v. McConnell, 911 So. 2d 468, 475 (¶18) (Miss. 2005) (citation omitted).

a. Roadway

¶14. First, the Joneses maintain that the chancery court erred in finding that their use of the 455-foot roadway was permissive—and therefore insufficient to satisfy the hostility requirement of adverse possession or a prescriptive easement—on the basis that the Pruitts had given them verbal permission to use the roadway. In support of their argument, the Joneses cite this Court’s decision in Delancey v. Mallette, 912 So. 2d 483, 489 (¶17) (Miss. Ct. App. 2005), in which we held that “[w]hen a use of the lands of another for roadway purposes has been open, visible, continuous and unmolested since some point in time anterior to the aged inhabitants of the community, such use will be presumed to have originated adversely.” (Quotations omitted). Further, the Joneses argue that “[r]equiring a litigant who is attempting to establish adverse possession or a prescriptive easement to prove that there was no permission for use would be unreasonable. The law typically frowns upon requiring a party to prove a negative averment.” Morris, 792 So. 2d at 284 (¶9).

¶15. In response, the Pruitts contend that one of the most basic principles in establishing adverse possession or a prescriptive easement is that the use must be hostile, and that “permissive use by the possessor of the property in question defeats the claim of adverse possession.” Ellison v. Meek, 820 So. 2d 730, 735 (¶15) (Miss. Ct. App. 2002) (citation omitted). In support of their argument, the Pruitts cite the testimony at trial that the Pruitts and Joneses had a friendly relationship up until this dispute. The Pruitts further argue that the fact that Sidney kept the gate locked is consistent with Bocee’s testimony at trial that she allowed him to cross into her land as long as he watched out for her property. Additionally, the Pruitts argue that the fact that Sidney never gave Bocee a key is irrelevant, as Sidney, himself, admitted that the Pruitts did not need a key to access the Joneses’ property.

¶16. This Court held in Cleveland v. Killen, 966 So. 2d 848, 851 (¶11) (Miss. Ct. App. 2007):

As a general rule, permissive possession of lands, even if long continued, does not confer title in the person in permissive possession until a positive assertion of a right hostile to the owner has been made known to him. If there was never a request or a grant of permission to use the land, however, the use would not be permissive, but would be adverse. It is a fact question for a chancellor to determine whether a use is prescriptive or permissive.

(Internal citations and quotations omitted). Furthermore, we reiterated:

Use of property by permission does not evolve into a hostile or adverse use until the permission ends. The time period for obtaining adverse possession or a prescriptive easement, when express or implied permission is previously given, does not begin to run until some form of objection to the use is made by the landowner.

Id. at 852 (¶15).

¶17. Chancellor Harvey-Goree, in her order, found that “all the testimony revealed that the use [of the roadway] was peaceable and permissive.” Chancellor Clark made similar findings in his order on the Joneses’ motion for reconsideration or for a new trial, and affirmed Chancellor Harvey-Goree’s holding with respect to the roadway. We affirm. The record is void of any evidence suggesting that the Joneses’ use of the roadway was anything but peaceful. Furthermore, Irozenell even testified at trial that she never sought to bar the Joneses from using the roadway; rather, she merely sought to have them remove their lock from the gate on the roadway. As such, the Joneses have failed to establish that their use of the roadway was hostile, and their claim for adverse possession or a prescriptive easement thereto is unsuccessful.

That language in the statute, ” … in whatever way such occupancy may have commenced or continued … ,” simply does not embrace occupancy that was commenced or continued by permission because it is not hostile or adverse.

Here the Pruitts gave the Joneses permission to be on the property. The same result would obtain if the occupancy were commenced pursuant to a lease. Both Judge Mason and I have had adverse possession cases involving leases.

Another important point to leave with is that the elements of adverse possession must all be proven by clear and convincing evidence in order to establish a prescriptive easement.

 

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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