Friday, May 29, 2009

Prescriptive easement usage must be adverse;conclusory statement that usage was adverse is not sufficient proof

GEORGE W. THOROGOOD, JR., ET AL. v. D'ALTON PROPERTIES, LLC, ET AL. (Tenn. Ct. App. January 23, 2009).

The plaintiffs, George W. Thorogood, Jr., and his wife, Charlotte E. Thorogood, and the defendant Theresa Evans, respectively, reside on adjacent subdivision-size lots in Cleveland, Tennessee. The lot on which Ms. Evans resides is owned by the defendant D'Alton Properties, LLC. The two lots front on Ocoee Street and back onto Chambliss Avenue. The northern boundary line of the Thorogoods' property is the southern line of D'Alton's property. This litigation concerns a paved driveway that had been located on D'Alton's property prior to being removed in 2006. The driveway was located entirely on the LLC's property. It ran along the southern line of that property, i.e., the northern boundary of the Thorogoods' property, from Ocoee Street to Chambliss Avenue, a relatively short distance. The Thorogoods filed suit against D'Alton and others seeking to be declared the holders of a prescriptive easement in the driveway. The record shows, without dispute, that the Thorogoods, as well as other members of the general public, used the driveway as a matter of convenience. In March 2006, after making extensive renovations to the residence on its property, D'Alton removed the asphalt driveway and landscaped the "driveway" area. When issue was joined in this litigation, the Thorogoods filed a motion for summary judgment, which the trial court granted. The trial court concluded that there were no genuine issues of material fact as to the Thorogoods' right to a prescriptive easement based upon the court's finding that the driveway had been used by residents of the Thorogoods' property "for a period of greater then [sic] twenty (20) years, being at least from 1950 until 1976." The court ordered a mandatory injunction requiring D'Alton to remove the landscaping and re-pave the driveway; it also permanently enjoined D'Alton from interfering with the Thorogoods' use of the easement. The trial court stayed enforcement of the mandatory injunction pending the filing by D'Alton of a bond in the amount of $7,500. The bond was filed. D'Alton appeals. We reverse the trial court's three relevant judgments, pursuant to the provisions of Court of Appeals Rule 10 and remand for further proceedings.

Opinion may be found at the TBA website:

"In order to establish prescriptive easement under the common law of this state, the usage must be adverse, under claim of right, continuous, uninterrupted, open, visible, exclusive, and with the knowledge and acquiescence of the owner of the servient tenement, and must continue for the full prescriptive period.  The requisite period of time of continuous use and enjoyment for a prescriptive easement is twenty years." Id.

'The Thorogoods rely upon the testimony of Mr. Thorogood to establish use of the driveway from “approximately 1950” to 1976 and thereafter until the driveway was removed by D’Alton in 2006.  Use by non-residents of the alleged servient estate is clearly shown.  What is not shown is that the use was adverse under claim of right.  Mr. Thorogood’s only testimony with respect to the Cumulus requirement of a use “adverse, under claim of right” is his conclusory statement that the use was “adverse to the owners of said property.”  Such a conclusory statement, being inadmissible, cannot be considered by us on the subject of whether the Thorogoods are entitled to summary judgment.   See Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993).  There is no admissible evidence in the record before us showing that the use from 1950 and thereafter was “adverse, under claim of right.”'