Re: Prescriptive Easements and Tacking

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I also think Williams is out of luck because he walked into
litigation and sat around doing essentially nothing until his
grantor and predecessor-in-interest was defaulted/dismissed.
Williams' rights in this entire lawsuit are dependent on Jones' and
Jones is defaulted/dismissed with prejudice.

The easement is not in a remote area and is very easy to monitor.
However, Smith will not give an inch (neither would I) since he's
already litigated the issue against Jones. In a hypothetical: I can
foresee no end to this litigation if Williams then sells to Brown
before the end of this year and Brown sells to Zimmer before this
entire lawsuit is finally settled.

My real problem with the prescriptive easement is: Just how many
times and against how many defendants does Smith have to litigate
the issue. If Jones is defaulted and all successors must tack onto
their predecessors, then every buyer **after** Jones, including
Williams, tacks onto a defaulted/dismissed prior owner, and we all
know the effect of a default to a complaint and dismissal with
prejudice of a cross-complaint seeking affirmative relief.

The court already said tacking was an evidentiary issue to be
resolved at trial.

I say the issue can be resolved on summary judgment where Williams
has not owned the property for 5 years and where Williams states he
need not tack onto anyone; but if he did have to tack, he can pick
**any** of his predecessors.

It's just your typical neighbor-v-neighbor case where the players
keep changing.

On 10/28/05, Still Looking wrote:
> 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.
>