Parties own adjoining land with apartment buildings that are only four feet apart.
Area between was used by Ps' tenants to reach the laundry room at the rear of the apartment building.
Ps alleged that they owned an easement in the walkway lying between two apartment houses owned by P and D.
Ps wanted injunction to compel Ds to remove a fence they constructed across the walkway.
Ps argue that they have an easement because the passageway has been used without interruption for the full prescriptive period and for a common purpose and that no oral agreement for such use was shown on trial. Therefore, the use should be regarded as adverse.
Trial court denied Ps' right to an easement and to an injunction because use by Ds' predecessors was a gesture of goodwill.
COA affirmed, use was permissive and thus does not warrant a prescriptive easement.
How can it be determined if a party's use of a parcel of land warrants a prescriptive easement?
The trial court may examine the circumstances surrounding the use of another party's parcel of land to determine whether the party using the land has a prescriptive easement. If the trial court deems that that use is permissive, then no prescriptive easement exists.
Ps rely on two cases in which an appeals court upheld the decision of the trial court holding that a prescriptive easement existed. In these cases, both parties owned part of a strip of land that they both used as a driveway. It was held that the use was not permissive, but was adverse, thus an easement existed.
We are unable to agree with Ps that the evidence in the instant case compelled a finding that they were entitled to a boundary line easement.
We are convinced that the evidence set forth and inferences that can be reasonable drawn from them, support the trial court's findings and judgment.
Was a gesture of neighborly goodwill, therefore the use was permissive.
Relationship between the parties was good (P's child married D's child).