Prescriptive easement to dock boat recognized

Where appellants docked a boat along appellees’ retaining wall for more than 20 years, they have established a prescriptive easement to dock the boat. The circuit court erred by concluding that after a former owner sold the land, his permission to dock the boat survived the sale.

The court correctly concluded that appellants did not establish a prescriptive easement to store small watercraft on appellees’ land. The evidence supports a finding that watercraft were not stored continuously for 20 years.

The easement

This case involves lakefront property, Lot 612, and two landlocked parcels, Lot 613 and 615. In 1966, the Fidels owned Lot 612 and granted an easement over their land so that the Robinsons, owners of Lot 613, and the Chappells, the owners of Lot 615, could access the lake.

The Robinsons and the Chappels improved the easement by building stairs and constructing a retaining wall along the shore of Lot 612. After the work was finished, the Robinsons docked a pontoon boat along the retaining wall. In 1976, the Robinsons and the Chappells jointly purchased an electric pontoon boat and docked in the same spot.

In 2015, the jointly owned pontoon boat sank. It was immediately replaced with another one “that has remained in that spot since that time.”

Subsequent lot sales

“The Fidels sold Lot 612 to the Keelers in 1970. The Keelers sold the property to the Crains in August 1976. The Chappells sold Lot 615 to the Horns in 2005. The Robinsons sold Lot 613 to the Rustgis in 2013.

“There is no evidence the Keelers or the Crains granted permission to anyone to tie the pontoon boat to the retaining wall on their property at any time during their ownership of Lot 612.

Rustgi litigation

The Webbs, the appellees, bought Lot 612 in 2017. They told the Horns and the Rustgis to remove the pontoon boat and other small watercraft. The Horns and the Rustgis argued they had a prescriptive easement to dock and store, respectively, the pontoon boat and other watercraft.

Mr. Rustgi sought a declaratory judgment that he had a prescriptive easement. The Webbs counterclaimed for trespass and nuisance.

The court found for the Webbs. Rustgi sold the Horns his half interest in the pontoon boat for one dollar.

‘Horn v. Webb’

The Webbs renewed their demand that the Horns remove the boat and other watercraft. They sued, alleging trespass and nuisance. They also claimed that the Horns were in privity with Rustgi. The Horns counterclaimed, asserting a prescriptive easement.

“[T]he Horns presented evidence that some smaller watercraft, such as canoes and skiffs, had been stored on Lot 612 for years. Mrs. Horn testified that ever since they purchased the land in 2005, the watercraft were stored on the same spot on Lot 612.

“A former neighbor, Ira Kirschbaum, also testified concerning the presence of small watercraft on Lot 612. However, [a series of] aerial photographs … did not show watercraft stored on Lot 612 in the manner Mr. Kirschbaum described.”

The trial court ruled that the Horns lacked a prescriptive easement to store watercraft or dock the pontoon boat.

The court awarded the Webbs $11,500 in punitive damages and $45,000 in punitive damages, ruling that the Horns should not have pursued the case in light of the unsuccessful Rustgi litigation.

The Horns appealed.

Storage

“To establish a prescriptive easement, claimants must prove that the property’s use “was adverse, under a claim of right, exclusive, continuous, uninterrupted, and with the knowledge and acquiescence of the owner of the land over which it passes, and that the use has continued for at least 20 years.”

There was conflicting evidence about watercraft storage. Meredith Horn said storage had been continuous since 2005, but this did not establish “the requisite 20-year period. …

“A former neighbor testified that the Chappells stored smaller watercraft on Lot 612. The circuit court found his testimony equivocal and in conflict with aerial photographs.”

As a result, the court ruled a prescriptive easement regarding storage had not been established. The record supports the court’s conclusion.

Docking

“The principal question before the circuit court was whether the docking of the boat was ‘hostile.’ A claimant ‘is in hostile possession if his possession is under a claim of right and adverse to the right of the true owner.’ … Permission to occupy the land negates hostility. …

“[T]he Horns established a use that was open, visible, and continuous throughout the required prescriptive period. Therefore, they were ‘entitled to a presumption that the use arose adversely or under a claim of right.’ … The burden then shifted to the Webbs to show that the use was permissive. The Webbs offered no evidence of permission. …

“[T]he Fidels’ permission would have ended when they sold the lot.

“The circuit court held that once permission is granted, it is presumed to continue indefinitely, even when the person who granted permission sells the land. We disagree. Permission is personal to the grantor[.]” …

The Horns had “a prescriptive easement to dock a boat on the Webbs’ lot. We reverse the circuit court’s contrary holding.”

Litigation not malicious

“With respect to the claim of a prescriptive easement to dock the pontoon boat, the Horns are the prevailing parties. Consequently, no damages of any kind can be awarded against them as to that component of the case.

“Even with respect to the Horns’ claim of a right to leave smaller watercraft on the Webbs’ land, the record does not support an award of punitive damages.

“The Horns presented evidence from a neighbor to support their claim of a prescriptive easement. Although the circuit court credited the photographic evidence rather than the testimony of the Horns’ former neighbor and ruled against them, that does not render the Horns’ claim malicious. …

“The circuit court reasoned that despite their knowledge that the Webbs prevailed in that earlier litigation, the Horns nevertheless pressed ahead with their own claim of a prescriptive easement.

“The Horns, however, were not parties to the prior lawsuit. The Rustgi lawsuit adjudicated Mr. Rustgi’s rights, not the Horns’ rights.

“The circuit court in this case ruled that Mr. Rustgi and the Horns were not in privity. That decision was not challenged and is now the law of the case. The fact that the Horns were pressing the same claim of a prescriptive easement with the same or similar evidence does not render their assertions of right malicious.”

Affirmed in part, reversed in part and remanded.

Horn, et al. v. Webb, et al., Record No. 220230; (McCullough) Feb. 9, 2023. From the Circuit Court of Fairfax County (Harris). Kevin J. Horn, Pro Se (Kathryn Meredith Kersey Horn, Pro Se, on briefs), for appellants. J. Chapman Petersen (Federico J. Zablah; Chap Petersen & Associates, on brief), for appellees. VLW 023-6-004, 12 pp.