Posted by dts on 10/27/05

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Seeking comments on the following real case:

Jones buys property in 1995. Begins using road on adjoining
property that belongs to absent property owner, Smith.

In 2001, Smith finds out Jones is using his property; Smith
blocks road.
Jones orally claims prescriptive easement on road.
Smith files quiet title lawsuit in 2001 against Jones.

Jones defends and counter-sues Smith claiming prescriptive
easement.
Jones then sells to Williams. Williams does not intervene
in the lawsuit at time of purchase.
Jones then suffers discovery sanctions where court struck
answer, entered his default and dismissed his counter-suit
with prejudice.

Williams intervenes after Jones suffers discovery sanctions.
Williams claims he has prescriptive easement and has own
right to litigate the easement. Williams tears down fence.
Williams claims he does not have to tack onto Jones to meet
statutory 5-year- period for prescriptive easement.

Smith claims he has already litigated the issue of the
easement. Smith claims Williams does not meet statutory
requirements for easement; must tack onto Jones.

Williams says he does not have to tack onto anyone. That he
can rely on any of his predecessors’ use of the road and has
own right to pursue the easement and claims there has been
no final judgment in the case. Case set for trial in about
six months.

State case law provides that a terminating sanction is "on
the merits" and res judicata.

Comments?

Re: Prescriptive Easements and Tacking, 10/28/05, by dts.

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