The Effects of Notice Statutes on Prescriptive Easements
Prescriptive easements can be as problematic in their extinguishment as in their creation. One difficult question is the relevance of recording and “notice” statutes found in most states to existing prescriptive easements. Notice laws generally protect innocent buyers from title issues that are documented only in unrecorded deeds or documents relating to their property.
Since prescriptive easements are not dependent on recorded documents, many recording acts should not be applied to them. It is necessary to consider prescriptive easements separately from those created by recorded grant or by implication.
Modern decisions in West Virginia and Maryland have raised the specter of applying a claim of “bona fide purchaser status” (associated with notice statutes) to the servient estate as a method of extinguishing a prescriptive easement. Determining whether the purchaser of the servient tract had notice (actual or constructive) of the easement at the time of purchase becomes a critical issue.
A detailed analysis of this problem is found in Herbert Thorndyke Tiffany, The Law of Real Property (3rd Edition by Basil Jones, Volume 3, pg. 399) Chicago, Callaghan & Co., 1939). This treatise first considers the effect of actual or constructive notice on record easements, or on easements implied from recorded documents: “In the case of an easement created by express grant, the right of the innocent purchaser for value of the servient tenement to hold the land free from the burden of the easement is obviously by reason of the recording laws, which invalidate an unrecorded conveyance as against a purchaser without notice, and the same is true of an easement created by “implied grant” so called, which is properly, as before explained, an express grant extended by construction to include an easement appurtenant to the land conveyed.”
A separate standard is generally applied in analogous situations involving prescriptive easements: “In the case of prescriptive easement, however, the recording acts, as ordinarily phrased, cannot well apply to protect an innocent purchaser, since they have to do with priorities as between instruments affecting land, while if the easement is prescriptive, the question is one of priority as between a claim under an instrument and a claim not under an instrument. In one state there are decisions to the effect that a purchaser of land takes it subject to a prescriptive easement thereon, even though he has no notice, actual or constructive. There are on the other hand occasional decisions that the purchaser in such case takes free from the easement, the courts ignoring the consideration that the doctrine of notice, in this connection, is based primarily upon the recording acts.” Observe that, circa 1939, two separate lines of reasoning were already evident. Since that date, it appears that these divergent views have continued to bedevil state courts.
The Predominant Theory
As stated above, the more prevalent stance recognizes the unique characteristics and origins of prescriptive easement law. These easements are created and exist outside the normal hierarchy of the statute of frauds and associated recording statutes. This position is illustrated in the Washington decision Crescent Harbor v. Lyseng: 51 Wn. App. 337 (1988).
Crescent Harbor was a corporation created in 1969 to manage and administer a private water distribution system. Lyseng bought the disputed tract in 1985, but a prescriptive easement was established during the 15-year period prior to Lysengs’ purchase.
The question for the court was whether Lysengs’ purchase of the land extinguished the prescriptive easement. He claimed that his “bona fide purchaser status” granted him title to the disputed land uninterrupted by the prescriptive easement.
Judge Winsor affirms the rationale stated by Tiffany, and also recognizes the lack of unanimity among the various courts. He observes that recording statutes do not generally apply to claims of fee simple title acquired by prescription and then extends that principle to prescriptive easement claims: “The courts’ reasoning in these cases applies equally well to prescriptive easements. An easement by prescription is not subject to recordation and would be of little value if it were extinguished by a transfer of the servient estate. Thus,
It is a recognized principle that a bona fide purchaser of land without actual or constructive notice of the existence of an easement in such land takes title free from the burden of the easement. As stated, this rule is broad enough to include all easements, … but an examination of the cases. … will disclose that while this principle is occasionally relied upon to support a holding that a purchaser of land without notice ... takes free of [an] easement [by implication], it has rarely, if ever, been interpreted to mean that an easement by prescription once actually in existence can be destroyed by a conveyance of the servient estate even to a purchaser in good faith.
We therefore hold that the bona fide purchaser doctrine does not apply to an easement by prescription.” This ruling is later quoted with approval by the Colorado courts.
An earlier Washington ruling is inconclusive regarding the role of notice in extinguishing prescriptive easements. Van De Vanter v. Flaherty: 37 Wash. 218; (1905) considers a dispute over a prescriptive easement and implies that notice could be an issue. Judge Rudkin was able to avoid the problem because the purchasers of the servient tract clearly had actual and constructive notice of the easement.
The Ohio court has likewise rejected the concept of constructive or actual notice as a controlling factor for extinguishing prescriptive easements. Renner v. Johnson: 2 Ohio St. 2d 195; 207 N.E.2d 751 (1965) is a benchmark decision that includes significant discussion and research from numerous states. While affirming that notice is critical when considering easements implied by prior use, the court recognizes the unusual problems posed by prescriptive easements: “In reaching a contrary result, Ricenbaw v. Kraus (1953), 157 Neb. 723, 61 N.W.2d 350, relied upon cases holding that easements acquired by prescription are enforceable against bona fide purchasers without notice.” It is somewhat ironic that the Ohio courts, having affirmed the relevant principles of the majority position, are later misquoted by the West Virginia decision Fanti v. Welsh (discussed below) as authority for the minority stance.
The Minority Position
A few courts have promoted an alternate theory that presumes the destruction of a prescriptive easement where the servient estate is sold to a bona fide purchaser with no actual or constructive notice of the easement. Several cases applying this standard deal with underground utilities that are not evident from surface indications.
One prominent decision in this category is the West Virginia case Fanti v. Welsh: 152 W. Va. 233; 161 S.E.2d 501 (1968). This ruling also highlights the possible application of this concept to existing prescriptive easements for underground utilities. In this instance, a private sewer line was constructed in 1934 across the adjoining land, despite the lack of any record easement. The line was built with actual knowledge of the original property owner and remained in place for 30 years, far exceeding the 10-year statute of limitations in West Virginia.
In 1963, the servient tract was sold by deed that was subject to “…all existing ways and servitudes, howsoever created….” The purchaser hired an attorney to research the title of the servient tract and also conducted a visual inspection of the servient tract. Neither approach revealed the presence of the sewer line. Nor did the seller mention any easement or sewer line running under the tract.
The complete lack of visible or record evidence was critical to the case. The court concluded that the sale of the servient tract with no actual or constructive notice would have extinguished any existing prescriptive easement for the sewer line: “In other words, even if it be conceded that the plaintiffs were entitled to a prescriptive right to a sewer easement over the property when it was owned by the railroad company, that right was extinguished by the conveyance of the property to defendant James A. Welsh as a purchaser for value without actual or constructive notice of the plaintiffs’ claim of an easement right.”
Fanti v. Welsh cites numerous sources for its position, including several previous West Virginia and Virginia rulings. It is unsurprising that one quotation cited for authority specifically refers to easements created by unrecorded grant rather than those created by prescription.
An unpublished 2012 New Jersey ruling considered but rejected the application of the standard set by Fanti v. Welsh. Lamanna v. Swan: Docket No. A-1280-10T3 (Unpub. 2012) chronicles an attempt by Lamanna to persuade the New Jersey courts to adopt the standard applied in Fanti v. Welsh, but the court found no precedential or statutory authority for such a conclusion.
At least one early Kansas decision seems to support this theory. Jobling v. Tuttle: 75 Kan. 351; 89 P. 699 (1907) discusses the effects of notice on subsequent sales of the servient estate, but careful reading of this decision makes clear that the case turned on the creation of a prescriptive easement and the associated requirement for open and notorious use.
Several New Mexico rulings considered analogous problems and established precedent based on rather uncertain beginnings. Southern Union Gas v. Cantrell: 56 N.M. 184; 241 P.2d 1209 (1952) is an early decision that includes wide-ranging discussion of the effect of notice on adverse possession, prescriptive easements and record easements. However, when given the opportunity to set precedent for prescriptive easement claims, the court equivocates with this statement: “Plaintiff urges that a valid easement established by prescription is not to be extinguished upon transfer of the servient estate although the visibility of the use or its apparency may be slight or non-existent. We need not treat this question in view of our holding that an easement by prescription was not in existence at the time of the transfer.”
This case was later quoted by another New Mexico decision Otero v. Pacheco: 94 N.M. 524; 612 P.2d 1335 (1980) which re-states the general rule found in Cantrell in reference to implied easements by necessity. Otero does not include any reference to prescriptive easements, but was cited for authority by Kiler v. Beam, the Maryland case discussed previously.
There appear to be three basic misapprehensions that have contributed to the continued development of the minority position:
- Application of the “open and notorious” requirement of prescriptive easement law after the fulfillment of the statutory period for prescriptions. Confusion over the question of when the prescriptive easement is perfected adds additional complexity.
- Application of recording statutes to property rights that have no basis in recorded documents.
- Failure to discern the difference between easements created by recorded transfers (whether express or implied) and rights created by prescription.
Rulings following the minority position tend to rely heavily on incomplete analysis and short quotations from previous decisions that are taken out of context. In many instances, the decisions regarding prescriptive easements incorrectly cite cases that describe dissimilar situations dealing with record easements.
The majority rule is ultimately based on better analysis and more complete understanding of the unique nature of prescriptive rights. However, it is important to remember that contrary precedent has been set in some states and may control in those jurisdictions.
Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.