Prescriptive easement; Privity; Adverse or hostile; Mutuality; Continuous; Lamkin v Hartmeier; Judicial disqualification; Mootness

The court held that defendants “have a prescriptive easement on Island Shore Drive that they can enjoy as found and outlined by the trial court, and that the trial court did not err in dismissing plaintiffs’ claims when defendants did not overburden or exceed the scope of their easement.” Plaintiffs first argued “that there was no privity of estate between defendants and [previous owner-trustees-]the Gosses, and so, defendants cannot tack their possessory period onto the Gosses using the second option[.]” The court affirmed the finding of privity, noting that defendants and the Gosses “understood the use of the road to transfer with the purchase of the property,” that there was a “historical lack of an alternative access,” and that the Gosses made parol statements at conveyance indicating the right to use the road transferred. The trial court also found defendants were well-acquainted with the property at purchase. These findings were not erroneous, and the trial court properly held that privity existed and tacking was permitted. Next, plaintiffs argued that defendants could not “tack onto the Gosses’s use or acquire their vested prescriptive easement,” asserting their use was permissive. The court noted that when “defendants or their predecessors-in-interest adversely use the property 'in excess of the prescriptive period for a substantial period of time,' the burden shifts to plaintiffs to show that the use was merely permissive.” The Gosses “testified that they used Island Shore Drive since the 1960s, a substantial excess of the 15-year-statutory period, thereby shifting the burden to plaintiffs to show that the Gosses’s use was permissive, rather than adverse.” Plaintiffs also argued “that defendants’ and the Gosses’s use was not hostile or adverse because of the mutuality of Island Shore Drive.” The Gosses “did not acknowledge that a section of it belonged to plaintiffs; they had no idea that they needed plaintiffs’ permission because they thought it was a road,” and use of the road was not a convenience for plaintiffs. Thus, the trial court did not err in finding the use “hostile and adverse,” that defendants “had no express, written right to use” the drive, and that “the use was not permissive.” As to continuity, plaintiffs argued “that the Gosses’s infrequent trips to the property are insufficient for a prescriptive easement.” The court noted that the “trial court found that the use was continuous because defendants and their predecessors used Island Shore Drive in the nature and character of a private road for access, attendant uses typical of a residential neighborhood, and ancillary uses, such as for invitees.” It concluded that this “was not clearly an error considering the Supreme Court’s order in Lamkin[.]” It held that the “trial court did not clearly err in making these findings and did not err in concluding that the Gosses’ and defendants’ uses satisfied the elements for a prescriptive easement. With that said, even if defendants established they have a prescriptive easement over Island Shore Drive, plaintiffs could still have a claim for trespass or nuisance if defendants exceeded the scope of the easement or overburdened the easement.”