Threlkeld v. Sisk


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Docket Number: 2007-CA-00944-COA
Linked Case(s): 2007-CA-00944-SCT

Court of Appeals: Opinion Link
Opinion Date: 09-23-2008
Opinion Author: Chandler, J.
Holding: Affirmed

Additional Case Information: Topic: Real property - Prescriptive easement - Easement by necessity
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Barnes, Ishee, Roberts, and Carlton, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - REAL PROPERTY

Trial Court: Date of Trial Judgment: 05-03-2007
Appealed from: LEE COUNTY CHANCERY COURT
Judge: Kenneth M. Burns
Disposition: THE PLAINTIFFS WERE GRANTED A PRESCRIPTIVE EASEMENT AND AN EASEMENT BY NECESSITY OVER THE DEFENDANTS' ROAD
Case Number: 98-0143

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: WILLIAM MARIAN THRELKELD, RANDY KEM WHITTEN, IVA NELL WHITTEN, EDWARD L. MAYNARD, MARY RUTH WHITTEN AND SANDRA K. FARLEY




B. SEAN AKINS



 

Appellee: MITCHELL L. SISK, GRACE SISK, JAMES BRUCE SISK, SR. AND PHYLLIS SISK GOGGANS THOMAS MELVIN MCELROY  

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Topic: Real property - Prescriptive easement - Easement by necessity

Summary of the Facts: A chancellor granted Mitchell Sisk, Grace Sisk, and James Sisk, Sr., a prescriptive easement across a private, gravel road to access their landlocked farmland. The chancellor also found that Mitchell and Grace had an easement by necessity across the gravel road. William Threlkeld, Randy Whitten, Edward Maynard, Mary Whitten, and Sandra Farley, the owners of the gravel road, appeal.

Summary of Opinion Analysis: Issue 1: Prescriptive easement The Whittens argue that the chancellor erred in finding that the Sisks were entitled to a prescriptive easement over the gravel road. One claiming an easement by prescription must show that the use of the property was open, notorious, and visible; hostile; under claim of ownership; exclusive; peaceful; and continuous and uninterrupted for a period of ten years. The Sisks presented testimony that they used the gravel road on several days each spring and fall to plant and harvest crops and during the growing season to check on their crops. Though the Sisks did not use the road on a daily basis, it is not necessary, in order to establish an easement by prescription, that the way has been in constant use, day and night, but it may be established by such use as business or pleasure may require. The chancellor found that the Sisks had proven hostility because neither the Whittens nor the Whittens' recent predecessors-in-title had given their consent; however, the chancellor also stated that "there was evidence that many years ago a previous owner had given consent." While the chancellor erred by finding that a previous owner had given consent, the chancellor's ultimate conclusion that the Sisks' use was hostile was not clearly erroneous. The Sisks' use of the gravel road was consistent with a claimed easement across it to access their landlocked property. The evidence showed that, other than the Whittens and their guests, the gravel road was used only by the Sisks and their guests. There was no objection to the Sisks' use of the gravel road from 1965 until the mid-nineties, long after the ten-year period of prescription had run. The Sisks' use of the gravel road was continuous and uninterrupted for a period of ten years before their usage decreased in 1983. A prescriptive easement in favor of the Sisks had vested by at least 1981 because their use of the gravel road was open, notorious, visible, hostile, under claim of ownership, exclusive, peaceful, and continuous and uninterrupted for a period of ten years. Thus, there was no error in the chancellor’s determination. Issue 2: Easement by necessity While the Whittens admit that an easement by necessity arose in 1941, they argue that the easement by necessity was terminated in 1983 when Mitchell and Grace obtained other access. An easement by necessity is destroyed if the necessity ceases because other access to the landlocked parcel has become available, such as by the easement holder's acquisition of adjoining property that provides access to the outside world. However, permission to cross the land of adjoining landowners does not constitute unrestricted access that will terminate an easement by necessity. Such permission is merely a license that is revocable at will. Therefore, Mitchell and Grace's easement by necessity was not destroyed by their permissive use of another property since the permission to use that property was revoked several years before the hearing.


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