Easement by prescription reversed and denied on appeal.

Schonbek, Trustee of the Isaiah 61 Foundation v. Chase (2009-292) (08-Oct-2010) 2010 VT 91 (Reiber, C.J.)  

Defendants appeal from a decision holding that plaintiff possessed a twelve-foot-wide prescriptive easement for vehicular and pedestrian ingress and egress across defendants’ property. Because the record does not support the trial court’s conclusion that plaintiff currently has a prescriptive easement over defendants’ land, we reverse.

The most that plaintiff could have received by way of a prescriptive easement was the right to make use of the alley in particular ways, not the right granted by the trial court for general ingress and egress.

The “nature and scope” of the use of property during the prescriptive time period “establishe[s] the general outlines of the easement.”  Cmty. Feed Store, Inc., 151 Vt. at 158, 559 A.2d at 1071-72. “No use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the adverse user.”  Id. 151 Vt. at 157, 559 A.2d at 1071 (quotation omitted)

The main problem with the trial court’s decision is that it failed to recognize the limits that necessarily accompanied any prescriptive easement established by plaintiff’s predecessors.  The trial court granted plaintiff an unlimited prescriptive easement “for the purpose of general ingress and egress, both pedestrian and vehicular,” based upon evidence that, even when viewed in the light most favorable to the prevailing party below, established nothing more than intermittent use of the land for specific purposes— such as deliveries of fuel oil, occasional use of the back door by upstairs tenants, trash removal out the back door; etc.

With the exception of the deliveries of fuel oil, all of the uses listed above were not just intermittent, but were in fact so infrequent as to be insufficient to establish a prescriptive easement. Further, by “on-site abandoning” of the oil tank and encasing that tank in concrete , plaintiffs “conclusively and unequivocally” manifested an intent to abandon any prescriptive easement that might have existed for fuel deliveries.