• Recent Cases Provide Guidance on Prescriptive Easements
  • March 27, 2012 | Author: Edward J. Levin
  • Law Firm: Gordon Feinblatt LLC - Baltimore Office
  • The Maryland Court of Special Appeals recently decided two cases about prescriptive easements.  In the first, the Court held that the provisions of a written easement agreement could be expanded by prescription.  In the second, the Court held that a use that was originally permissive could be terminated by the burdened owner, even if the owners of both the burdened and benefited properties had changed.

    USE OF PROPERTY BEYOND THE TERMS OF A WRITTEN EASEMENT

    In Turner v. Bouchard, 202 Md. App. 428 (2011), an opinion written by Judge Albert Matricciani, the Court of Special Appeals held that a person could expand an express easement with a prescriptive easement over adjoining property where that person’s use of the expansion area was adverse, exclusive, and continuous for more than 20 years.

    The parties to the case were owners of adjacent lots in Lusby, Calvert County.  In 1975, Luther and Dorothy Muth sold a lot (Lot 16) to the Bouchards.  (Mrs. Bouchard has since died; Mr. Bouchard continues to own the property.)  At the same time, the Muths conveyed to the Bouchards a separate, recorded easement over a small portion of the adjacent lot (Lot 17) to serve as a driveway for ingress and egress.  In 1980, the Muths conveyed Lot 17 to the Bouchards and the parents of the Turners, the defendants in the case.  In 1984 the Turners’ parents purchased the interests of the Bouchards in Lot 17.  In 2005 the Turners bought Lot 17 from their parents.

    From the beginning of their ownership of Lot 16, the Bouchards, and later their tenants, used more of Lot 17 than was described in the easement agreement.  That additional property is called the “Disputed Area.” 

    The Bouchards filed suit in the Circuit Court for Calvert County to establish their rights in the Disputed Area.  The circuit court held that the Bouchards had a prescriptive easement and therefore had the right to continue to use the Disputed Area.  The Turners appealed, and the Court of Special Appeals affirmed.

    The Court of Special Appeals held that the person claiming a prescriptive easement initially has the burden to show that the easement had the requisite character for the necessary period of time, but once the movant has done so, the burden shifts to the owner of the burdened land to prove that the use was permissive.  The circuit court found that there was no evidence that the Turners had given permission for Bouchard’s use of the Disputed Area.

    The Court of Special Appeals analyzed the following three elements of prescriptive easements in the context of Turner:

    1.    Adverse.
    The “adverse” requirement means that the use of the easement must be without license or permission of the landowner.  Turner contended that because there was an express easement over a portion of Lot 17, the use by Bouchard of the Disputed Area was permissive.  The Court of Special Appeals rejected this argument and held that without other evidence that Turner had granted Bouchard a right to use the Disputed Property, Bouchard’s use of it was adverse.

    The Court held that the failure of the Turners or their parents to protest the use of the Disputed Area before 2006, when they posted “No Trespassing” signs, in light of their knowledge of that use (or opportunity to find out about it), was acquiescence, not permission.

    2.    Exclusive
    The Court of Special Appeals held that the “exclusive” requirement means “the claim of user must not depend on the claim of someone else,” citing Shuggars v. Brake, 248 Md. 38, 45 (1966).  In Shuggars, the Court of Appeals said, “Even though a claimant may not have been the only user, it is sufficient if he used the way under a claim of right independently of others.”  Given this definition, the Court of Special Appeals found that Bouchard satisfied the “exclusive” requirement.

    3.    Uninterrupted and Continuous for 20 Years.
    In order to satisfy the requirement that the use be “uninterrupted and continuous” for 20 years, the easement need not be used every day, but “the claimant must exercise the right more or less frequently according to the nature of the use to which enjoyment may be applied.”  The circuit court had found the adverse use began again in 1984, when the Bouchards sold their interest in Lot 17, and that it continued for 22 years until the Turners protested in 2006.  From 1980 to 1999, the Bouchards rented Lot 16 to others, and the tenants used the Disputed Property as the Bouchards did.  The Court permitted the Bouchards to tack the time that their tenants used the Disputed Property onto the period when they themselves used it.

    A PRESCRIPTIVE EASEMENT MAY EXPAND A WRITTEN EASEMENT

    The Court of Special Appeals concluded in Turner, “While the law may disfavor easements by prescription, that policy cannot be twisted to protect landowners who sleep on their rights.”  The Court found that as to the Disputed Area, the Bouchards had satisfied the three requirements to establish a prescriptive easement - adverse, exclusive, and continuous use for 20 years - and it therefore affirmed the circuit court’s decision.

    ONCE PERMISSION IS GRANTED, IT IS DIFFICULT TO ESTABLISH A PRESCRIPTIVE EASEMENT

    Rupli v. South Mountain Heritage Society, Inc., 202 Md. App. 673 (2011), an opinion authored by Retired Judge James Kenney, involved the failed efforts of a landowner (Brenda Rupli) in Burkittsville, Frederick County to continue to use the well that was located on her neighbor’s property.  Before 1973, the neighbor’s predecessor had granted permission for the prior owner of Rupli’s property to use the well.  Both properties changed hands, and in 2005 the new owner of the property with the well, South Mountain Heritage Society, Inc., instructed Rupli to disconnect from its well.  She refused to comply.

    On September 14, 2009, South Mountain sought declaratory relief in the Circuit Court for Frederick County concerning the use of the well and to quiet title to the well.  Rupli alleged that the conditions for a prescriptive easement were met.  However, in the opinion of the circuit court, the original use of the well was pursuant to permission, and Rupli had the burden to show adverse use, which she was not able to do.  The circuit court granted summary judgment in favor of South Mountain.

    On appeal, Rupli argued that the transfers of both parcels of property from the persons who owned them at the time of the grant of the license converted her use of the well to an adverse use.  As discussed by Judge Kenney, in some other states, the transfer of either of the burdened or benefited estates creates an implicit revocation of permission and triggers a presumption that the subsequent use is adverse. 

    However, the Court of Special Appeals stated that the creation of a prescriptive easement is not favored by the law.  It held that, in Maryland, “notwithstanding the revocation by implication of the license following the conveyance of the servient [burdened] or dominant [benefited] estate, or both, if the original possession is not adverse, the presumption of permissive use continues in the absence of affirmative evidence that the character of the use has changed.”  Without such evidence, the Court of Special Appeals affirmed the decision of the circuit court and denied Rupli any right to the well.

    PRACTICE POINTERS

    As noted above, a requirement of a prescriptive easement is that its use be adverse to the interest of the owner of the burdened estate.  Therefore, that person may defeat a claim of a prescriptive easement by granting permission to the user.  This can be done orally, but from an evidentiary perspective, it is better for the owner of the burdened estate to set forth in a writing that the user has permission or a license to use the property, or a portion of it, for a particular purpose.  The owner of the burdened estate should make clear that the permission or license is revocable at any time. 

    Depending on the property and its use, the owner of the burdened estate may want to have the writing provide that the user will be liable for, and indemnify the owner against, any damages; that the user will maintain insurance and name the owner as an additional insured; and that the user must maintain the property and restore it when the permission is terminated.  For the purpose of making a record, the user should sign the writing to acknowledge receipt, and if the writing addresses issues relating to liability, indemnification, insurance, maintenance, and restoration, the user should certainly sign it.