Re: Prescriptive Easements and Tacking

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Ok, so it sounds like Williams is out of luck. However, what
about the successors to Williams. If Willams takes down the
barrier, then sells the property and the new owner starts using
the Easemant, does the prior decision against Jones constitute
Res Judicata concerning the New Owner? My guess would be no.

If this is a remote property and difficult for Smith to monitor,
and the easement is not a hindrance to Smith but a benefit to the
servient estate, then maybe it would be more practical to grant
the easement in exchange for consideration rather than continue
with litigation.

On 10/27/05, dts wrote:
> Thanks for the input.
>
> I say Williams *must* tack because he can meet the statutory
> 5-year requirement no other way. However, he says if tacking
> were required, which he asserts is not, he can tack onto **any**
> of his predecessors, including those from 20 years ago. My
> research says that is simply not possible. He stands in the
> shoes of his predecessor -- who is defaulted/dismissed.
>
> Jones did not file motion to vacate or set aside default or
> dismissal. Neither did Williams -- even after Williams learned
> of Jones' default/dismissal. I agree that Williams could have
> moved to set aside; but, they he did not. Time is up. It's
> been 10 months since the default/dismissal. One more twist:
> Williams bought with full knowledge of the lawsuit but did
> nothing to intervene until after Jones' default/dismissal.
>
> Easement by necessity is not an issue. Williams has access to
> the public road from the other side of his property. He simply
> wants the Smith easement because he wants it.
>
> I see no end to the successors-in-interest against which Smith
> must defend, if Williams prevails in this case. If one were to
> believe Williams' position, then Williams could sell to Brown,
> who would then re-start the litigation over the eaesment -- and
> Smith must then litigate the easement for a third time.
>
> On 10/27/05, Still Looking wrote:
>> It seems that Williams would have to either tack on to Jones
>> ownership or start the clock again with his purchase. Not
>> too favorable to Williams since Smith has put everyone on
>> notice to keep out.
>>
>> Since the discovery sanctions effectively provide a judgment
>> for Smith, perhaps Williams' only course would be to appeal
>> the sanctions decision on the basis of Jones' appeal rights
>> subrogating to the new owner Williams. If successful,
>> Williams could then tack onto Jones' ownership period and
>> relitigate the issue of the existence of the easement.
>>
>> Is Easement by Necessity an issue in this case?
>>
>> An interesting case.
>>