Prescriptive Easements public.doc - MTAS

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					July 15, 2002
Page 1

                                                      July 15, 2002

Dear Utility Manager

       You have the following question: Where a certain sewer line was run on private property
70 or so years ago, but the easement for the line was never recorded, does the city have an
easement for the line? Under the facts related to me, there is no evidence of a formal
easement, and the property has been sold at least once following the installation of the sewer

        Easements in Tennessee are created several ways: express grant, reservation or
exception; implication; prescription; estoppel; and eminent domain. [See Townsend, Mahlon L.,
“Comments: Easements in Tennessee,” 25 Tennessee Law Review 219 (1956)] Given the time
that has passed since the installation of the line, the city probably has a prescriptive easement,
but the “final answer” depends upon the facts. I will outline the law governing prescriptive
easements, from which hopefully you will be able to determine whether you have such an

       An easement by prescription arises whenever a person uses another person‟s land
without permission for 20 years. [See Town of Benton v. People‟s Bank, 904 S.W.2d 598 (Tenn.
Ct. App. 1995); Bradley v. McCleod, 894 S.W.2d 929 (Tenn. Ct. App. 1998)]. However, the
owner of the property must acquiesce in the use of the land. The owner‟s acquiescence is not
the same as his permission; rather, it is his failure to stop or interfere with the use of the land.
Governments can acquire easements by prescription from private parties.

        I am not clear about the circumstances under which the city installed the sewer line 70 or
so years ago. In any case, there is no record of an express grant of an easement, and no
recorded easement. It appears to be the law in Tennessee that an unrecorded easement is not
effective against a purchaser of property who otherwise has no notice of the easement. It is said
in W.W. Whorley v. State, 75 Tenn. 382 (1881), that:

                The spirit of our registration laws require the registration or actual
                notice of all such instruments in order to give them effect as to
                third persons, and there is every reason for the application of the
                laws on this subject to the conveyance of a right of way. A bona
                fide purchaser without notice expects to acquire the absolute
                property in and dominion over the lands purchased, A claim in a
                third party to a right of way over the land is inconsistent therewith,
                and if the claim rests upon a grant or deed, it should either be
                registered or the subsequent purchaser should have notice of it. It
                might of course be different if the right was established by long use
                or prescription, or there were circumstances creating estoppel...
                [At 303] [Emphasis is mine.]
July 15, 2002
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The law in other jurisdictions appears similar. [See Fletcher Oil Company v. City of Bay City, 78
N.W.2d 205 (Mich. 1956)]. For that reason, if the property in question has been conveyed since
the sewer line was installed, and its purchaser or purchasers bought the property without notice
of the existence of the easement, the easement does not continue as to them.

        A person claiming an easement by prescription must show that for a 20 year period his
use of the land was:

       1. Non-possessory;

       2. Adverse;

       3. Open and notorious [some cases say “visible”];

       4. Uninterrupted.

[See Jones v. Ross, 388 S.W.2d 640 (1963); Livsey v. Noe, 460 S.W.2d 853 (1970);
McCammon v. Meridith, 830 S.W.2d 577 (Tenn. Ct. App. 1991).]

        There is no question that the city‟s use of the land only for the purposes of a sewer is a
non-possessory use of the land. If the sewer line in question was installed 70 or so years ago,
there is a good possibility that for at least 20 years of that period there was adverse, open and
notorious, and uninterrupted use of the sewer line by the city, without permission of the property
owner/s. The span of 20 years of such use is not required to have covered only a single owner
of the property, but can have covered his predecessors in title. [See House v. Close, 346
S.W.2d (1961); German v. Graham, 497 S.W.2d 245 (1972).] According to the facts related to
some of the sewer line installations on the property have for much longer than 20 years been
visible and obvious to the owners of the property, and the city has performed maintenance on
the sewer line during that period.

        An important legal principle that works to the city‟s benefit with respect to the burden of
proof that pertains to prescriptive easements is found in Jones v. Rose, 388 S.W.2d 640 964

                ....first, that the plaintiff has the burden of sustaining his claim of
                adverse use; second, when the plaintiff or the one claiming the
                right to an easement by prescription shows open, continuous,
                uninterrupted, exclusive use for the prescriptive period with the
                acquiescence of the owner of the servient estate, he has carried
                his initial burden, and a presumption arises that the use was
                adverse, the burden of adducing evidence contrary to that
                presumption thus being cast upon the opposing party. The burden
                of proof remains upon the plaintiff to establish the prescription by a
                preponderance of evidence. [At 649] [Emphasis is mine.]
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       [Also see Smelcer v. Rippetoe, 24 Tenn. App.51, 147 S.W.2d 564 (1944).]

       In the case of the property in question, the property which contains the sewer line is the
servient estate. Thus, while the burden of proof would be upon the city to show by a
preponderance of evidence that there is an easement created by prescription, when the city
presents evidence that shows open, continuous, uninterrupted, exclusive use of the property for
20 years, a presumption arises that the use was adverse, and the burden of showing proof that
the use was not adverse shifts to the property owner of the servient estate.

        The term “exclusive use” does not mean that the city had to have been the sole user of
the property, only that the right of the city to use the property did not depend upon the similar
rights of others. The fact that the landowners themselves, and even others, used the property,
does not detract from the city‟s exclusive use of the property, within the meaning of “exclusive
use” in the context of prescriptive easement law. [See House v. Close, 346 S.W.2d 445 (1961).]
Under the facts, I see nothing in the city‟s use of the property as a sewer easement that depends
upon the use of the property by others.

        Depending upon the city‟s relationship with the present property owners and their
predecessors in title, acts, the present property owner‟s ability to show that the city‟s use and
maintenance of the sewer line was not adverse--that it was a permissive use--might be difficult.
As pointed out above, adverse use on the part of the city need not have taken the form of real
“hostile” use. “Hostile” use in the sense of a prescriptive easement means use hostile to the
rights of the property owner. In Jones v. Ross, above, Jones argued that they had a prescriptive
easement for the use of certain Ross property. The Jones‟ showed that they and their
predecessors in title had used the Ross‟s property for 34 years. There were no “hostile”
confrontations between the Jones‟ and Ross‟s over the use of the property. In fact, the Court
pointed out that:

                This [the 34 year use] was not contested....Defendant‟s [the
                Rosses‟] however, place emphasis on the requirement that the use
                be exclusive, hostile, with intent to claim as against the true owner,
                and such as to put defendants on their guard that they might
                eventually suffer an easement by prescription in their portion of the
                alleyway. The elements of proof of the latter factors clearly exist in
                this case. There was never any objection to the use, although it
                was not concealed; there was no reason to conceal it; there were
                no agreements concerning the use of the alleyway; „There was no
                permission; we just used it.‟ It is inescapable from a reading of the
                entire testimony before us that plaintiff‟s and his predecessor‟s use
                was under claim of right and with the intent to claim that right
                against the true owner, and it was such use as should have
                warned defendants that plaintiff might acquire a prescriptive
                easement. On the other hand, defendants make no proof
                concerning permissive use. On the contrary they show no
                permission was asked or given....[At 649-50]

       That brings us to an evidentiary problem: At first glance, it appears that the owners of
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property could always defeat an argument by one claiming a prescriptive easement that his use
of the land was adverse by testifying that they never objected to the use of the property. Lamons
v. Mathes, 232 S.W.2d 558 (1950), points to that problem in rejecting testimony that the use of
the property in that case had been permissive. The property was a walkway across the
defendant‟s property. The walkway was enclosed on two sides, contained permanent steps, and
had been used for over 50 years [actually, 63 years], “during all of which time the use was
continuous and open and under a claim of right.” [At 563] In finding that the plaintiffs had a
prescriptive easement in the walkway, the Court pointed out that the facts „the open use of the
property to obtain access to other property‟ put the defendant property owners on notice that a
hostile claim was being asserted against their property, and defeated the testimony that the use
of the walkway had been permissive.

        Obviously, a sewer line is not as highly visible and open as is a walkway or street or
similar structure or installation. But if the city openly maintained the sewer line for an
uninterrupted 20 year period without the permission of the present property owners or their
predecessors in title, particularly where some of the sewer installations on the property were
visible and obvious upon the ordinary use of the property, it is difficult to see how the present
property owner could support an argument against the creation of a prescriptive easement.

         I do not know whether the city notified, or asked permission of, the property owner when
it performed maintenance on the sewer line. Let me raise what might be an important point
here: There is probably a distinction between giving notice to a property owner that the city is
going to perform maintenance on the sewer line that crosses his property, and obtaining
permission from the property owner to perform maintenance on the sewer line. For that reason,
if the city contacted the property owners or their predecessors in title before coming on the
property to perform maintenance on the sewer line, it should probably take care to determine the
context in which the contact was made.

       Let me know if I can help you further with this or any other question.


                                                      Sidney D. Hemsley
                                                      Senior Law Consultant


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