Facts: P demonstrated by clear and convincing evidence that his employees and
tenements openly and notoriously used the driveway from Geddes St. to P’s warehouse
for over 27 years until 1970, when D purchased the land encompassing the driveway
area) and continued until access was permanently blocked in 1985. Although D
presented evidence that temporary barricades were erected by the predecessors in title
and others during the 1950’s and by D’s in the 1970’s there was no proof that these
temporary devices ever effectively interfered with, or disturbed, P’s continuous use of the
driveway.
Issue: Does P have a right to a prescriptive easement based on the circumstances?
Holding: P is entitled to a judgment declaring that he has an easement and restraining D
form obstructing the driveway or otherwise interfering with P’s continuous use thereof
Rationale:
– Once a party claiming prescriptive use of an easement demonstrates that the use was
open and notorious, continuous and uninterrupted for the prescriptive period, a
presumption arises that such use was adverse, and the burden is on the servient
landowner to prove that the use was by permission or license. Here, D presented no
evidence that express permission was grant during the critical period between 1943-1958
(15 years).
– D claims that permission may be implied from their predecessor’s neighborly
accommodation, but this lacks merit. A mere claim of neighborly accommodation is not
proof of permission and evidence that the predecessor erected a temporary barrier on one
occasion negates an implication of permission
– Use can be adverse even if the use is not exclusive, especially if P is the principal user