Without Adequate Pleading, Repeated Trespasses Do Not Establish a Prescriptive Easement

July 8, 2013 | Erika Eckley

An easement by prescription is an implied easement that is granted when someone has used at least a portion of someone else’s property in an open and uninterrupted manner for a continuous period of time – 10 years in Iowa.  In order to establish a prescriptive easement, the person claiming the easement exists must provide strict proof of the following: using another’s property under a claim of right, openly, notoriously, continuously, and in a hostile manner (in opposition to the claim of another) for ten years. In addition, in order to advance a claim in a lawsuit, a litigant must specifically identify that the claim is being made Alternatively if an additional claim is brought at trial and presented in a manner sufficient to apprise the other party of the claim and no objection is made to the claim being tried, then the party can pursue that claim.

In this case, the plaintiff failed to amend his pleadings to indicate a claim of a prescriptive easement nor did he sufficiently apprise his opponent of the claim at trial. Therefore, the claim was improperly considered by the trial court, and he was precluded from claiming its existence in defense of the plaintiff’s request for injunctive relief against him.

In this case, the plaintiff owned farmland adjacent to the defendant’s land. The defendant previously leased the disputed portion of land from the plaintiff. However, a subsequent tenant noticed that the defendant was still using a portion of the land because tire tracks were visible and the grass was worn to dirt in spots leading to and from the road through the plaintiff’s gate and onto the defendant’s parcel. The plaintiff padlocked the gate, but defendant cut the locks and continued to use the area for ingress and egress to his parcel.  The plaintiff removed the gate and placed barbed wire fence in the area, but the defendant tore out the fence and replaced the gate.

The plaintiff, through legal counsel, sent notice to the defendant to stop using the land because the defendant did not have an easement and didn’t have permission. Ultimately, the plaintiff sued to permanently enjoin (prevent) the defendant from entering the land without permission. The defendant filed an answer, but never entered an affirmative defense or counter-claim of having a prescriptive easement to use the property. However, the  trial court judge held that based on the defendant’s evidence, he had a prescriptive easement to use the land.  Thus, injunctive relief was not appropriate. The plaintiff appealed.

On appeal, the primary issue was whether the issue of a prescriptive easement was tried by consent by the parties. There was no dispute that the claim was not raised in the pleadings. The court agreed with the plaintiff that the only mention of an easement was a claim that defendant had an express easement and that no mention of a claim of a prescriptive (implied) easement was ever made. When evidence was introduced regarding the existence of an easement over a period of time, the plaintiff objected to the testimony. Because there was no consent, the issue of whether an easement existed was not at issue and the appellate court held that the trial court had erred in finding that a prescriptive easement existed.

On the injunctive relief issue, the trial court had denied the plaintiff injunctive relief because the court concluded that a prescriptive easement existed. However, because the prescriptive easement issue was not properly before the trial court, the appellate court reviewed the evidence to determine whether an injunction should have been granted. The court held that plaintiff proved he owned the land and that the defendant admitted being on the land without permission and cutting locks, which established an invasion to the plaintiff’s property rights.  The evidence also showed substantial harm to the plaintiff due to gates being left open, worn paths, and a violation of existing tenant’s rights.  The evidence also showed there were at least two other routes that the defendant could take to reach his land that did not require traveling over property that other parties owned.  In addition, the defendant repeatedly trespassed on the land, which factored in favor of granting an injunction to prevent multiple suits arising from each trespass. The court determined that the plaintiff’s “petition presents the precise circumstances for which a court in equity should issue an injunction.” Therefore, the trial court’s order was reversed and an injunction was issued to prevent defendant from entering plaintiff’s land without permission. Ransom Family Farm Inc. v. Walleser, No. 3-217 / 12-1127, 2013 Iowa App. LEXIS 663 (Iowa Ct. App. June 26, 2013).