Dirt Law at Ground Level

August 10-16, 2015

State your intentions

By W. Christopher Barrier

Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

A recent column cited a Washington state case for one unusual premise and one rather basic one. The less usual factual context of the Hren case dealt with the supposition that appurtenant easements (of any variety) would be contiguous. In that case the appellate court very carefully explained why that might be the case, but not a condition of the finding.

The column went on to opinion that prescriptive easements are just darned hard to establish. More recently, the Arkansas Court of Appeals underscored this second point clearly and succinctly, as to claims to prescriptive easements and also to assertion of boundary lines by acquiescence in a Washington County case Teague v. Canfield.

In the Teague case, at issue was the legal title to a triangular tract of land owned of record by Owners, abutting property owned by Neighbors. The triangle was enclosed by Neighbors’ fence, and the Owners brought an action to quiet title to that fenced property.

The Neighbors quite predictably counterclaimed, claiming the triangle by adverse possession and also claiming access to the triangle by a prescriptive easement.

The Court of Appeals ruled for the Owners on all the counts, after reviewing the record de novo (which does not refer to a small American car or a pasta dish).

De novo means a review by an appellate court of the entire record compiled at the trial court level, as if they were hearing the matter themselves. (Make your cases at your trial, don’t count on an appellate court to fix any mistakes or omissions.)

The Court of Appeals reviewed the required elements for the Neighbors’ claim of title by adverse possession to the triangle, as to which the Neighbors had relied almost exclusively on the fence. The Court ruled that ownership would have vested years earlier under a state of the law which would have made finding of adverse possession easier to obtain. However, the record was clear that Owners had only to pass through a lock-less gate, to reach the triangle. Hence there was no hostility or adversity, and intent to so hold, the hallmarks of adverse possession. (The Court may have required strong showing of intent. After all, the triangle had been in the Owners’ family since 1889.) Further, they had attempted to meet with the Neighbors to clear up matters and any intentions without success.)

Similarly, the Court found no expression of intent (actually or by implication) to hold the access road adversely. Neighbors’ use was purely permissive.

Finally, the Court distinguished adversity and acquiescence, which are mutually exclusive. Likewise, subjective thoughts to what a claimant intended by seeming consent may not be not enough.

So ... Teauge v. Canfield tells us what is on the flip side of the Hren coin when there is actual adversity expressed. In both situations, a claimant has to call and stick with it to win the toss.

Chris Barrier is a business and real estate lawyer in Little Rock, but no gambler.