Easements: ALLEN V. THOMAS (COA 7/7/2006)

REAL PROPERTY:  Easements and continuity of use
STATUTORY INTERPRETATION:  Retroactive application of laws
DATE RENDERED:  7/7/2006

The COA reversed and remanded a lower court judgment which granted the general public a prescriptive easement over their property.

An easement can be created by prescription. “As with adverse possession of a fee simple estate, a prescriptive easement can be acquired by actual, hostile, open and notorious, exclusive, and continuous possession of the property for the statutory period of fifteen years.” Columbia Gas Transmission Corp. v. Consol of Kentucky, Inc., 15 S.W.3d 727, 730 (Ky. 2000); see also KRS3 413.010.  Easements, however, are not favored under the law, and “the right of one to acquire title to an easement, which would deprive the owner of the use of his own property or burden it with a servitude, will be restricted unless it is clearly established by the facts that all the necessary requisites of adverse user have been fully satisfied.” Ben Snyder, Inc. v. Phoenix Amusement Co., 309 Ky. 523, 218 S.W.2d 62, 63 (1949).

“Kentucky law prohibits the amended version of a statute from being applied retroactively to events which occurred prior to the effective date of the amendment unless the amendment expressly provides for retroactive application.” Commonwealth Dept. of Agriculture v. Vinson, 30 S.W.3d 162, 168 (Ky. 2000).  it is not necessary for a dominant tenement or an interest in real property adjacent to the subject property to exist in order for an easement by prescription to be found. See Inter-County Rural Elec. Co-op. Corp. v. Reeves, 294 Ky. 458, 171 S.W.2d 978, 983 (1943)

As the prescriptive easement sought here can be categorized as one “in gross,” as it “is a mere personal interest in or right to use the land of another”, id., we must reject the Allens’ position.   The COA noted that its research finds it had never directly addressed, in-depth, the question of what constitutes sufficient interruption of a period of adverse use so as to negate the creation of a prescriptive easement – particularly when an effort to interrupt ultimately fails.

Here, COA found that clear conduct indicating that a property owner is not acquiescing as to a prospective easement owner’s claim of right should rightfully be considered as ending the running of a prescriptive period.   At no point in the record  was there any evidence to suggest that there was a 15-year uninterrupted period of use between these events or prior to 1959. As the burden to prove all requirements of a prescriptive easement falls upon the party seeking it, and said requirements must be clearly established by the facts, the trial court was clearly erroneous in finding that an easement was proven here, as continuity of use was not adequately shown by Thomas.

Edited by Stevens.