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Objective memorandum · 90 minutes

A neighbor's long use of a farm road

Predict whether a landowner acquired a prescriptive easement over a neighbor's farm road and whether permission defeats it. You have 90 minutes. To: Associate. Use the File and the Library only, then compare your draft with the rubric and the model answer below.

The assignment

To: Associate. From: Yvonne Delacroix, Partner. Re: Halvorsen v. Bright Acres. Our client, Halvorsen Orchards, has used a gravel road across the land of its neighbor, Bright Acres, to reach a public highway for 26 years. Bright Acres recently put a gate across the road and says Halvorsen has no right to use it. Please write an objective memorandum predicting (1) whether Halvorsen acquired a prescriptive easement, and (2) whether Bright Acres's occasional statements that Halvorsen could 'keep using it' defeat the claim. Use only the Library.

File

Client interview

Halvorsen Orchards bought its land 26 years ago. The seller, Amos Pike, told the buyers that a farm road crossed the neighbor's land and that he had used it for years. Halvorsen has driven trucks over the road every harvest season and several times a week in summer since. Bright Acres bought the neighboring land 14 years ago. Its owner, Lena Cho, never objected and about four years ago said, 'You're welcome to keep using the road.' In March this year she put up a locked gate. There is no written easement in either deed. The road is visible and has ruts.

Survey note

The road is 12 feet wide and runs 900 feet across Bright Acres from Halvorsen's boundary to Highway 9. No other road reaches Halvorsen's land except a steep trail.

Library

Real Property Code, section 5-320 (Franklin)

A prescriptive easement is acquired by use of another's land that is open and notorious, continuous, adverse to the owner, and without the owner's permission, for 20 years. The use may be tacked to that of a predecessor in interest if the predecessor's use also met these requirements and the land was transferred with the easement use.

Roark v. Denton Farms, 42 Fr.3d 190 (Fr. Sup. Ct. 2012)

A landowner used a neighbor's field road for 30 years. Held: use is presumed adverse when it is open, continuous, and unexplained, and the burden then shifts to the owner to show that the use was permitted. Permission means the owner's grant of a revocable license. A statement made after the prescriptive period had already run does not defeat an easement that had already ripened.

Kessler v. Marlowe, 47 Fr.3d 66 (Fr. Ct. App. 2016)

A neighbor used a road for 22 years, and the owner told him each year he could use it. Held: no easement, because the use was by permission throughout the period. The court explained that a general acquiescence is not permission, and mere silence or failure to object does not turn adverse use into permissive use. Only a grant, express or clearly implied, of the right to use defeats the claim.

What graders look for in this task

Graders score a response against these criteria, and every one of them depends on using only the facts in the File and only the rules in the Library, so treat the list as a check for your draft after the first pass and again before you stop writing.

  • States the elements of section 5-320 and the 20-year period
  • Applies open and notorious and continuous to the visible road and regular use
  • Applies Roark to presume adversity and shift the burden to Bright Acres
  • Notes that Bright Acres bought 14 years ago and that Halvorsen's own use was 26 years, so tacking is a question
  • Addresses Ms. Cho's statement and asks whether the period had already run
  • Distinguishes Kessler, where permission was given each year throughout
  • Considers Amos Pike's earlier use through tacking
  • Predicts an easement was likely acquired and notes the risk on the permission issue

Your workspace

90:00
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