Citation. 151 Vt. 152, 559 A.2d 1068, 1989 Vt.
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Brief Fact Summary.
A feed store had been using a piece of land for vehicles for many years before it was conclusively established that another party owned the land. The actual owner erected a barrier which prevented the feed store from using the land, so the store made a claim for a prescriptive easement.
Synopsis of Rule of Law.
In Vermont, a prescriptive easement is a nonfee interest, which is established by adverse use or possession which is open, notorious, hostile and continuous for fifteen years, and acquiescence in the use or possession by the person against whom the claim is asserted.
Plaintiff owns a feed store, which is next to defendant’s business. A parcel of land which covered with gravel north of plaintiff’s mill is in dispute. The north and south loading dock of the mill is used by vehicles, which turn and back on the gravel lot. The defendant bought the land in 1956, but did not realize until 1984 that the gravel area did not belong to plaintiff. The defendant erected a barrier that prevented plaintiff’s use of the gravel lot. The plaintiff now seeks a declaration of a prescriptive easement. The court denied the plaintiff’s claim.
When a person mistakenly uses the property of another for a statutory period of time without permission, does a prescriptive easement arise?
Yes. Judgment reversed.
In Vermont, to establish a prescriptive easement, the following elements must be established: adverse use or possession which is open, notorious, hostile and continuous for fifteen years, and acquiescence in the use or possession by the person against whom the claim is asserted. The possessor receives a non-fee interest.
The area in dispute had been used by vehicles since the 1920s, and the use was uninterrupted until the barrier was erected in 1984. This satisfied the open, notorious and continuous elements.
Generally, open and notorious use is presumed to be adverse.
The plaintiff proved they met the time period of fifteen years by the doctrine of tacking. The chain of title from 1929 to the present showed that the gravel area had been used by plaintiff’s predecessors.
An easement by prescription creates a possessory interest in land, similar to adverse possession. The difference is that the interest claimed under adverse possession is in fee; a prescriptive easement leads to a non-fee interest.