Summary 2007 WY 133

Summary of Decision issued August 17, 2007

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Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Kawulok v. Legerski

Citation: 2007 WY 133

Docket Number: 06-281

Appeal from the District Court of Sheridan County, the Honorable John C. Brackley, Judge

Representing Appellants (Plaintiffs): Hayden F. Heaphy, Jr. and Alison A. Ochs of Davis & Cannon, Sheridan, Wyoming. Argument by Ms. Ochs.

Representing Appellee (Defendant): Stuart S. Healy of Healy Law Firm, Sheridan, Wyoming.

Issues: Whether the trial court erred as a matter of law in ruling that “continuous use and logical inferences regarding past property transfers” was a proper legal standard to overcome the legal presumption of permissive use of a prescriptive easement. Whether continuous use of a driveway, without evidence of adverse or hostile use, was sufficient to establish a prescriptive easement. Whether in this case, Wyoming’s Dead Man Statute, W.S. § 1-12-102 bars corroborated testimony that a deceased predecessor in title had asked for and was granted, permission to use the Driveway. Whether the trial court improperly failed to consider on hearsay grounds, Pat and David Wartensleben’s requests for permission to use the Driveway.

Facts/Discussion: After a bench trial, the district court found the presumption of permissiveness was overcome by the logical inferences and Wartensleben’s continuous use. The trial court noted that it was reasonable to infer the previous owners had always intended the owners of the Legerski Tract to be able to use the northern portion of the Strip as a driveway. The court concluded the prescriptive easement vested prior to 1985 and ruled in favor of Legerski. The Kawuloks appeal from the district court’s order granting Legerski a prescriptive easement across their property.

Standard of Review: The case was tried without a jury so the district court judge acted as the finder of fact and law. Factual determinations by a judge are entitled to less deference than those of a jury. The Court reviews legal determinations de novo and grant them no deference.
Prescriptive Easement: The party claiming a prescriptive easement must prove four elements of adverse use: claim of right under title or claim of right; use which puts the owner of the subservient estate on notice of his claim; and continuous and uninterrupted adverse use for at least 10 years. The Court presumes the use of a private road by a neighbor is permissive. The claimant must produce evidence that shows how the owner of the servient estate was made aware of the hostile nature of the claimant’s use of the estate. Legerski failed to overcome the presumption of permissive use, making it unnecessary to review his claim in light of each of the elements. Legerski produced no evidence to rebut the presumption for the period from 1973 to 1985, the only period relevant to the district court’s ruling. The trial record supported a finding of continuous use but no evidence that such use was hostile or that the owners were given notice of hostile intent. Therefore, the presumption of permissiveness stands.
Implied Easement: Legerski did not assert the creation of an implied easement during the trial or in his pleadings but the Court noted some of the language utilized by the district court suggested the doctrine played a role in the court’s ruling. After reviewing the record, the Court stated that Legerski fell short of establishing two out of the three factors. The three elements are: common ownership followed by a conveyance separating the unified ownership; before severance, the common owner used part of the property for the benefit of the other part; and the claimed easement is necessary and beneficial to the enjoyment of the parcel previously benefited.
Evidentiary Issues: Because the Court concluded that Legerski failed to offer any evidence to rebut the presumption that Wartenslaben’s use of the driveway from 1973 to 1985 was permissive they did not need to consider whether the Kawuloks’ proposed evidence was admissible. The Wartenslabens’ requests for permission to use the driveway allegedly took place after the district court ruled Legerski’s prescriptive easement had vested and were not, therefore, relevant to the district court’s ruling.

Holding: The trial record supported a finding of continuous use but no evidence that such use was hostile or that the owners were given notice of hostile intent. Therefore, the presumption of permissiveness stands and the district court erred in concluding that Wartenslaben established and Legerski succeeded to a prescriptive easement on the Kawulok Tract. By not meeting two out of the three elements of an implied easement, Legerski’s claim failed. Because the Court concluded that Legerski failed to offer any evidence to rebut the presumption that Wartenslaben’s use of the driveway from 1973 to 1985 was permissive they did not need to consider whether the Kawuloks’ proposed evidence was admissible.

Reversed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2bqd2w .