Real Estate – Boundary Line Dispute – Easement – Adverse Possession

In this boundary dispute between two sisters whose property shared a common grantor and mid-creek boundary line with property plaintiff purchased at auction, a Henry County Circuit Court says plaintiff purchaser has a right to use the 30-foot road to access his property and defendant sisters have not proved an easement.

There are two main issues in this case: 1) whether plaintiff has a right to use the 30-foot road for ingress to and egress from his property; and 2) whether defendants have obtained title to a strip of land on the west side of the creek at the watering area through adverse possession. Defendants concede that the centerline of the Little Marrowbone Creek is the legal boundary between the properties, except in the Watering Area. Defendants do not claim any right to use the entire floodplain area and instead assert a claim only to that strip of land on the west side of the creek at the watering area for a distance of 110 feet.

The court finds that defendants have proven by clear and convincing evidence that the easement has been abandoned. The evidence is uncontradicted that no one other than defendants and their predecessors in title has used the 30-foot road for over 40 years. Defendants and numerous witnesses testified that the 30-foot road has never gone across the creek, in spite of the depiction of the 30-foot road on the ABCD plat. Exhibits 6 and 14 are photos that show that the 30-foot road ends at defendants’ house. The photos also show huge trees in the alleged path of the 30-foot road and overgrown vegetation at the creek, all of which strongly suggests that, even if a road existed at that location many years ago, it has long since fallen into disuse. There is also no dispute in the evidence that since 1939 defendants and their predecessors in title have maintained gates across the 30-foot road in a manner that is adverse to the rights of owners of the dominant estate, and that plaintiffs’ predecessors in title acquiesced in that adverse use.

Further, the court agrees with plaintiffs and finds that defendants have failed to prove all the elements of adverse possession by clear and convincing evidence. Since defendants’ use of the floodplain area has always been with the permission of the current owner of that area, defendants’ possession has not been hostile and under claim of right. Since defendants’ use of the pasture throughout the years was with permission, it necessarily follows that defendants’ use of the land on the west side of the creek, including the 110-foot strip of land bordering the watering area, was also with permission.

The court finds that plaintiff failed to prove damages arising from his inability to use the 30-foot road and therefore grants the motion to strike count V. The court finds defendants failed to prove by clear and convincing evidence a mutual mistake of fact and therefore denies their claim for reformation. The court also finds that defendants failed to prove an implied grant on the west side of the creek at the watering area. The court denies defendants’ request to require plaintiff to water his animals at another location on the creek and will require the parties to share the watering area at its current location to the fullest extent possible in light of the court’s ruling concerning the boundary line.

In sum, the court grants judgment in favor of plaintiff on count I, establishing a boundary line; the court grants judgment to defendants on counts II, III and IV on plaintiff’s claims for an express easement, an implied easement and an injunction requiring defendants to remove fences and gates, and the court grants the motion to strike plaintiff’s claim for damages. On defendants’ counterclaim, the court grants judgment to defendants on count III, alleging abandonment of the 30-foot road and judgment for plaintiff on counts I, II, IV and V, and finds that the 30-foot road has been extinguished by operation of law and defendants have not acquired the claimed easement.

Robinson v. Washburn (Greer, J.) No. CL 06-602, April 15, 2010; Henry County Cir.Ct.; Wade A. Bowie, Robert T. Vaughan Jr. for the parties. VLW 010-8-122, 9 pp.