Rights of Passage, or, What’s Yours is Mine, Too

First, a visual.

Your screen (you may want to use the wallpaper with that green hills background) is a 100-acre parcel owned by Kong. (Okay, if you use the wallpaper, you’ll have to visualize a 15 foot-wide, mostly linear creek that divides the two parcels about equally into two, 50-acre tracts.) While Kong owns the land, he accesses it only from the far western (left side) edge of the property. In 1993, Kong sells the left “half” to Dolt; and in 1995, he sells the right “half” to Pope. Pope and Dolt are neighbors, separated only by the creek, but they don’t see each other much. Pope starts a cattle ranch on his piece, but Dolt’s tract is vacant most of the time; Dolt uses it for a retreat during the pleasant-weather months of the year, and builds a cabin far back from the public road that runs along the tool-bar portion at the bottom of your screen.

Scenario 1: Pope figures that he’s got a little more pasture land at his disposal if he moves his fence west across the creek--about 50 feet from its left bank. He puts up a three strand, barbed-wire job with support posts, and puts a concrete bridge acros the creek in 1996, so the cows can cross over. He never talks to Dolt about his activities, and keeps a few head of cows grazing across the creek for the next decade, that meander up to the fence line now and then. In 2007, he sues Dolt in a declaratory judgment action seeking to quiet title, meaning establishing his outright ownership of the land inside his fence line. You all know the result. That’s what adverse possession is about.

Scenario 2: Pope decides in 1997 that cattle-raising isn’t his métier. (I fancy the notion of a cowboy having a métier.) And, he’s not fond of barbed wire either; it’s a bad aesthetic for him, so he takes down his fence. A year later, he decides to grow cotton on his land, but to get the maximum benefit from the creek water, he grows his crop from stem to stern, planting right up to the bank and covering his 50 acres so that he can’t access his fields (except between tight rows of the crop, which would get mangled by tires) by driving onto his property from the public road. So, he rents a grader in 1998 and blades across the east boundary of Dolt’s dirt adjoining the creek bed a path that’s wide enough for a single vehicle, thereby connecting the public road to the bridge across the creek. Pope puts pea gravel on the pathway at first, but lets the spinning of tires and occasional rainfall wash the gravel mostly away, and the drive “improvement” turns into a mess, though the vegetation where he drives stays mashed-down. A vacationing Dolt at first uses the driveway to get to the creek for fishing on his bank-side, but eventually Dolt tires of Pope’s indecision about his agricultural pursuits and Pope’s spendthrift ways, and all the dust stirred up by Pope’s pickup, too, so he erects a picket fence across the gravel driveway. Pope sues for trespass and to quiet title in 2008; Dolt counter-sues for the same relief. Who wins, and how? And what does the winner have, actually?

Easements, other than those established by an express grant, are a weird construct in Arizona’s law. There’s at least four ways a landowner can establish an easement involuntarily (as to the fee title holder) here: By implication via prior, existing use; by implication via necessity; by prescription; or, rarely, by estoppel (where usually an irrevocable license is found to exist by the court, rather than an easement). Let’s begin with some thoughts on the two types of implied easements.

An easement created by implication arises from an inference of the intentions of the parties to a conveyance of land. The factors determining the implication of an easement, according to the Third Restatement of Property (Servitudes) at §2.11, et seq. are these:
a. whether the party claiming easement rights was the conveyor or the conveyee of the land through which the easement is claimed;
b. the terms of the conveyance;
c. the consideration given for it (if any);
d. whether the claim is made against a contemporaneous conveyee (meaning if two parties got their lands at about the same time from the original overall owner);
e. the extent of necessity of the easement to the claimant;
f. whether reciprocal benefits result to the conveyor or conveyee;
g. extent to which the manner of prior use was or might have been known to the parties.

Here is an illustration of each type of implied-in-law easements:

Easement implied from a prior use: In the case of Van Sandt v. Royster, the easement is implied on the basis of an apparent and continuous (or permanent) use of a portion of the tract existing when the tract is divided. It is also called a "quasi-easement." This is imposed by a court to protect the probable expectations of the grantor and grantee that the existing use will continue after the transfer. In truth, this is an implied reservation, not an implied grant. This is an implied reservation because she reserved a right for her own property when she sold the other property. It would have been an implied grant, if she would have remained on the "quasi servient tenement" and sold the "quasi dominant tenement."

Easement by necessity: In the case of Othen v. Rosier (1950), the plaintiff and defendant own tracts of land which were formerly part of one larger parcel. To reach a public highway, the plaintiff had to cross over another's property, and used a road that ran over the defendant’s property, that he kept in repair. Because of drainage issues that had water encroaching, the defendant erected a levee, which made the road muddy for weeks on end. The plaintiff filed suit for injunction, to compel the plaintiff to eliminate the levee. But the court found in favor of the defendant, asserting that the roadway was not a necessity at the date of the division of the parcel by the original grant deed. So, in the necessity scenario, such an easement is implied when the court finds the claimed easement is necessary to the enjoyment of the claimant's land and that the necessity arose when the claimed dominant parcel was severed (separated by ownership) from the claimed servient parcel.

In Arizona, the case of Tobias v. Dailey, 196 Arizona 418, 422, 998 P.2d 1091, 1095 (App. 2000) is a “necessity case” that arose under the state’s private condemnation statute, but the court of appeals ruled that the landowners failed to show that they lacked an adequate alternative outlet to their parcels.

Here are the essential elements of an easement by prescription in most jurisdictions:

1. Open and notorious use of the land of the other (that is, it’s visible--the user isn’t sneaking around)
2. Adverse and under claim of right (that is, the user knows that he wasn’t originally vested with the right to use the other’s land, and that he wouldn’t be welcome to use it if the owner were asked for permission)
3. Exclusion of the owner; in Arizona, however, this is not a requirement for a prescriptive easement, so long as the claimant is not staking his claim on the basis of being a member of the general traveling public but rather as an individual making somewhat consistent use of the easement tract, see Ammer v. Arizona Water Company, 169 Ariz. 205, 209, 818 P.2d 190, 194 (App. 1991). (As a matter of fact, this issue of exclusion strikes me as the single biggest “difference maker” in understanding the distinction between adverse possession and prescriptive rights in Arizona.)
4. The passage of 10 years of continuous use, see Harambasic v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (App. 1996).

Additionally in Arizona, if the use is open and obvious (the courts say that the owner must have “notice,” but that has been construed to include constructive notice where the adverse use is obvious), there is a presumption in favor of the claimant that the use is adverse, see Harambasic above; it then becomes the burden of the owner to prove that the use was permissive. But proof that the use was expressly or impliedly with permission of the fee title owner will defeat a claim, and no number of years of use will lead to a prescriptive easement, see LaRue v. Kosich. (What constitutes an implied grant of permission is a whole ‘nuther discussion, I suspect; a recent Court of Appeals case, Spaulding v. Pouliot, 218 Ariz. 196, 181 P.3d 243 (App. 2008) stands for the proposition that when the claimant uses the tract acknowledging its use “in subordination to the owner’s title”—whatever that means—such an acknowledgement will support a finding of permission, even if it never were expressed.

The Spaulding court said this: “if a use is shown to have begun with the owner's permission, any subsequent use is presumed to have remained permissive. That is, a use that begins permissively cannot "ripen into a prescriptive right" by the mere passage of time. Consequently, in order to overcome the presumption of continued permissive use, the party claiming the easement must show that, despite the initial permissive nature of the use, his or her later actions indicated to the owner that the use had become hostile and under a claim of right.”

So, how does that work? Suppose Dolt had said to Pope when the latter first put down the driveway, “Yo, Pope, thanks for the improvements on my land--and hey, feel free to use that sucker all you want, ‘cause I’m sure enjoying the ease of takin’ the truck over by the creek, and I aim to drive along that path every time I’m in the neighborhood.” Does Pope now have to “fence off” the 1998 driveway along its west side, to prove that he’s not using it “in subordination to” Dolt’s title? Is it enough only to tear down Dolt’s picket fence and proceed with Pope’s use? How about if everyone in the county starts using the driveway to get to the bridge to fish the creek?

An easement by estoppel is the rarest bird. Perhaps that’s because it’s like a consolation prize for someone deserving but who cannot claim prescriptive rights. In a 2006 Ohio case, Kienzle v. Myers, 167 Ohio App. 3d 41, 2006-Ohio-2765, the Ohio appellate court said this: “While permissive use may prevent an easement by prescription from arising, in another context an owner's grant of permission for land use may act as an inducement for another to act, especially when the permission granted is for an act not easily undone.” Twenty-one years after Myers had installed a line, counsel for the Kienzles sent a letter to appellants advising them that the Kienzles had "decided to terminate the revocable license" by which Myers' sewer pipe crossed the Kienzle property. The letter directed appellants to "make other arrangements" within 30 days. Subsequent letters from the Kienzle family threatened to "cap" the sewer line absent certain concessions from Myers.

Another example of easement by estoppel is Holbrook v. Taylor, decided by the Kentucky Supreme Court in 1976. There, for years Holbrook tacitly was given permission to use a road which ran across the defendant's property. In reliance upon this, the plaintiff made improvements on his land, like a building of a home. The court found for Holbrook, holding that the right to use a roadway over the land of another can be established by estoppel. This is not, remember, an easement by prescription that fundamentally is acquired by adverse possession. Holbrook had received permission, however desultory, to use the property, so the use could not be ruled adverse. In this case, an irrevocable license was formed by estoppel and it has the potential to last forever or be used "to extent necessary to realize upon his expenditures." The irrevocable license formed here is the equivalent to an easement by estoppel—and evaluating the respective hardships to the relying party and the “permissive” party likely is the determining factor in a court’s decision.

So, what does the prevailing claimant for an easement or irrevocable license get from a court, more often than not? It’s a useful question because--more often than not--a court forgets to indicate that aspect of the outcome, especially if the use is ill defined, such as when a road bed washes away. Courts that do speak to the matter seem intent upon realizing the Jagger-Richards unified theory:

You can't always get what you want, no!
You can't always get what you want (tell ya baby)
You can't always get what you want (no)
But if you try sometimes, you just might find
You get what you need
Oh yes! Woo!

Did I wake you up? [Sorry] So, what you probably “get” is what the community standards are for the dimensions of the type of pathway (driveway, utility line right of way, etc.), often established by building or development codes, plus any access needed to maintain the easement tract. If Pope wins his 2008 case, whatever a private drive minimum width (curb cut and pavement) is in that community will be what is granted, probably—if for no other reason than concern for public safety. And that is what you need, just in case there’s a zoning enforcement authority in the jurisdiction of the dispute. But will Pope win?

-MNW