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"The 2Point Way" - Common & Shared Driveways vs. Concurrent Easements

Common driveways that straddle a boundary between neighbors frequently cause headaches for the courts. These improvements may have been built by strangers who happened to buy adjoining parcels in a subdivision. They can become more problematic when long-term use and maintenance by both adjoiners is suddenly interrupted. Two separate possibilities are addressed in this article: (a) neighbors cooperate to build a common drive, and (b) various landowners begin using the same driveway at different times.

Part I: Common Drive—Cooperative Effort

Where neighbors collaborate on the construction of a common drive for the benefit of both of their properties, several theories have been put forward to alleviate disputes where one suddenly decides that they no longer wish to share the use of ‘their land’ with the neighbor. Courts sometimes apply these doctrines in ways that seem inconsistent with their established parameters. These apparent inconsistencies are admitted—and sometimes marginalized—by the courts applying them. The obvious dilemma is that these drives appear to result from some sort of accommodation, yet there is no written agreement.

Reciprocal Easement by Estoppel

Estoppel has broad applications and is an attractive theory in situations where the origin of the drive and the motivations of the parties who built it are obscure. Where active cooperation is evident from the layout of the driveway, it may be difficult to prove that either party misled the other by words, acts or silence. However, some courts have found a way to avoid this apparent inconsistency by developing an alternate theory of estoppel specific to common driveways.

The Ohio court describes both the primary and alternate theories of estoppel in Prymas v. Kassai, 168 Ohio App. 3d 123 (2006): “[A]n owner of land, without objection, permits another to expend money in reliance upon a supposed easement, when in justice and equity the former ought to have disclaimed his or her conflicting rights… An easement by estoppel may also exist in a boundary strip passageway partly on each owner’s premises where adjoining landowners have enjoyed reciprocal use for a long period of time.” Note that the second definition is specific to shared driveways. Prior Ohio decisions cite relevant rulings from Missouri, Mississippi, Oklahoma & Wyoming to justify this stance.

The Hawai’i courts concur in Tanaka v. Mitsunaga: 43 Haw. 119 (1959): “…an easement by estoppel has been held to exist in a passageway over a boundary strip as a result of the reciprocal use of the strip by the adjoining owners as a passageway for a long period of time.” Both of these examples apply estoppel in apparent contradiction to typical standards.

Reciprocal Implied Easement

This alternative theory of reciprocal implied rights is a variation of the well-established doctrine of Implied Easements. Under this theory, no adverse use is required because the resulting easement is based on presumed intent of the parties. However, an obvious weakness exists under this framework because implied easement principles almost universally require a common grantor and reasonable necessity to operate. Depending on specific circumstances, sufficiency of necessity, evidence of prior use and/or common grantor elements may not be demonstrated.

The North Carolina court recognized the typical rules of implied easements in Packard v. Smart: 224 N.C. 480 31 (1944) but allowed an exception where two adjacent lot owners in a business district built a common stairwell for access to both of their buildings: “The fact that the title to the Foster property, now owned by the defendants, and the title to the property of the plaintiff, were not vested in a common owner at the time of the construction of the building involved herein, is immaterial. Easements created by implication or estoppel do not necessarily stem from a common ownership…But where adjoining properties of separate owners have been developed in relation to each other, so as to create cross easements in the stairways, hallways, or other private ways, serving both properties, such easements, if open, apparent and visible, pass as an appurtenant to the respective properties, and are binding on grantees, although not referred to in the conveyance.” The preceding statement is somewhat vague in its formulation of the precise mechanism that justified recognition of an easement. This quotation invokes elements of estoppel, prescription and implied easements.

Reciprocal Prescriptive Rights

The application of Reciprocal Prescriptive Easements includes its own hurdles but this solution is also favored by many courts. Under this theory, the open and apparent use by each party for an extended period represents an adverse claim against the neighbor. The Arkansas court highlighted this viewpoint in Armstrong v. McCrary, 249 Ark. 816, 462 S.W.2d 445 (1971): “The continued use of a passageway without objection and over a long period of years can establish adverse use so as to ripen into title by limitation. … Our holdings in that respect comport with the great weight of authority; particularly with reference to a passageway lying along the boundaries between two lots under separate ownership. In 27 A. L. R. 2d, p. 332, § 4, is this statement:

In the great majority of instances in which a lane, private road, alley, driveway, or passageway lying over and along the boundary between lots or tracts has been used without interruption by the adjoining owners for the full prescriptive period, and for a common purpose, and without any oral agreement therefor being shown, the user of each owner has been regarded as adverse as to the other and the claim of prescriptive easement upheld as against any attempt to restrict or deny the use.”

The obvious flaw with typical application of this premise is that the original occupation is often a collaboration between neighbors, undermining the argument for adverse use and raising the possibility of “Neighborly Accommodation” as a counterargument.

The Tennessee court asserts this principle in the benchmark decision Jones v. Ross, 54 Tenn. App. 136 (1963):“The mutual use by adjoining landowners of a way laid out between their lands, each devoting a part of his land to the purpose, will generally be considered adverse to a separate and exclusive use of the way by either owner.” This ruling cites 28 C.J.S. Easements sec. 18(j.) and 17 Am. Jur., 682— EASEMENTS, Section 70 for authority. This solution is relied on by many courts where (a) the driveway straddles the boundary line; (b) its construction was a collaborative effort) and; (c) it has been used without interruption for a period of time greater than the statute of limitations for real property in the state where the case is heard.

Lost Grant Theory & Prescription

Early principles of prescription may apply due to long recognition of the presumption of the “Lost Grant” as a basis for easements. This ancient justification of prescriptive easements presumes a grant where the use of the land has continued for sufficient time that the origins and evidence of a legitimate agreement may have been lost.

In Null v. Williamson, 166 Ind. 537 (1906), the Indiana court illustrates the long history of the Lost Grant Theory in English courts: “For instance, it cannot be supposed that any man would suffer his neighbor to use a way with carts and carriages over his meadow, for twenty years successively, unless some agreement had been made between the parties to that effect.’ Crimes v. Smith [1588], 12 Coke 4; Bedle v. Beard [1588], 12 Coke 4; Mayor of Kingston v. Horner [1774], Cowp. 102; Parker v. Baldwin [1809], 11 East 488. But, says a learned judge of the Supreme Court of the United States, ‘presumptions of this nature’ are founded upon the consideration that the facts are such as could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to, or an admission of an existing adverse title in the party in possession.” This solution has the advantage of recognizing that the origins of the easement are based on a presumed right rather than on an adverse taking.

Part Performance & Common Driveway

A few courts have applied the concept of Part Performance to perpetuate an apparent agreement that was never reduced to writing. As noted in the Connecticut decision Foldeak v. Incerto, 6 Conn. Cir. Ct. 416 (1970): “The court concluded that the parties had reached a valid and binding agreement relative to the construction and maintenance of a driveway over an agreed easement extending in part across the defendants’ property. The plaintiffs acted in reliance on the oral agreement for an easement and expended moneys for the improvement and maintenance of the driveway. The plaintiffs entertained a sincere belief that the parties had entered into a valid and binding agreement for an easement over the defendants’ premises. The plaintiffs’ partial performance took the agreement out of the Statute of Frauds, and estoppel came into operation.” While this legal mechanism has been marginalized in many courts, its parameters actually fit the typical shared driveway scenario better than many other theories discussed in this article.

The Oregon court also has applied principles of Part Performance to justify the award of an easement, as described in Oltmanns v. Lewis, 135 Or. App. 35, 898 P.2d 772 (1995).

Part II: Concurrent Easements—Different Sources

Where various parties have obtained rights to use a single driveway at different times, the specific sequence of events and background circumstances become relevant. Rather than evidence of a single common agreement, multiple rights may arise based on separate background conditions for each claimant.

Concurrent Easements may arise in several ways in situations that are different from the scenarios described previously in this article. Here, an existing non-exclusive easement may be overlaid with another non-exclusive right occupying the same physical location, but sourced from different legal mechanisms.

In Preshlock v. Brenner, 234 Va. 407 (1987), the Virginia court notes: “Any easement that may be acquired by grant also may be acquired by prescription. … Thus, a party may assert a prescriptive right to an easement that is concurrent with a previously granted easement or with an easement previously acquired by prescription.” When land use professionals observe several parties using a single driveway, they should never assume that all parties have the same rights based on a single set of circumstances.

In Kiwala v. Biermann, 555 S.W.2d 663 (1977), the Missouri court observes: “In general the owner of property burdened with an easement (the servient tenement) may use his property in any way which is not inconsistent with the easement. … There may be concurrent easements over the same servient tenement as long as the second easement is not inconsistent with the first easement. The existence of an easement will not “prevent the landowner granting to a third person another easement or right if it does not hinder the first grantee from having the full enjoyment of his easement.””

Concurrent easements may arise from separate express grants, reservations or prescription. Additional mechanisms might include easements implied and based on necessity, prior use or a plat. In one scenario, a strip of land subject to an existing right deeded to one party could be burdened by a separate prescriptive easement perfected by separate individual or group. Each easement holder may have the right to improve or repair the drive, as long as they do not intrude on the senior rights of pre-existing easements.

In these cases, it is up to each party claiming a right to the drive to prove the source of their right, whether by deed, estoppel, prescription or other legal mechanism.

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