The 'Castle Associates' Rule: It’s difficult to interrupt a right that has never been exercised...
It is an established principle of adverse possession doctrine that easements can be extinguished by adverse use where appropriate statutory and common law requirements are met. To extinguish an easement by adverse use, there must be an actual interruption of the easement use by the adverse claimant. This is an extension of the more general requirement that the use must be actionable in order to be considered adverse.
While adverse actions interrupting the use of an easement by the record owner can be demonstrated in cases where driveways have been constructed and used, it is much more difficult to prove the interruption of a so-called “paper easement”—one where the right was clearly granted but the driveway was never built and the easement area was never used for its intended purpose. In many states, the statute of limitations does not begin to run in this circumstance until the dominant owner is denied the right to use the easement.
Castle Associates v. Schwartz: 63 A.D.2d 481 (1978)is a benchmark New York decision that has been quoted by courts from Connecticut to Washington. While it is not the accepted standard in all jurisdictions, this decision considers the confusion that accompanies possible extinguishment of a paper easement by prescription.
The relevant background information is fairly straightforward. In 1903, a 12-foot easement was created across the subject parcel by an express grant. No specific location for the easement was described, but there was no question that the easement was to cross the subject parcel to reach a public road. The dominant estate and its appurtenant easement were sold to another party in 1907, but the road was never opened. In 1946, the then-current owner of the subject parcel built chain-link fence around the east, north and west boundaries of the subject parcel, effectively blocking any possible use of the record easement. The easement was never used and was forgotten over the years until it was re-discovered in 1976.
On appeal, Judge Damiani confirms the established rule that mere non-use of a record easement by the dominant owner should not be construed as an abandonment. He also concludes that the enclosure (by fence) of the subject parcel was not a use adverse to the easement because the record owner of the subject parcel had a legitimate right to use his land in any manner not contrary to law. Since the easement had never been located or opened, the owner of the subject parcel was never constrained to respect any actual use of the easement.
This court acknowledges that an active record easement can be extinguished by adverse use that interrupts the rights of the easement holder: “The established rule is that the maintenance of a fence or structure across an existing right of way which bars its use as such for more than the prescriptive period will terminate the easement by adverse possession … The key fact is that the fence or obstruction must block an existing right of way…”
After consideration of rulings from other jurisdictions, Judge Damiani applies this standard: “The rule to be derived from these cases is that where an easement has been created but no occasion has arisen for its use, the owner of the servient tenement may fence his land and such use will not be deemed adverse to the existence of the easement until such time as (1) the need for the right of way arises, (2) a demand is made by the owner of the dominant tenement that the easement be opened and (3) the owner of the servient tenement refuses to do so.”
Other arguments against the legitimacy of the easement also failed and the court concluded that it was still legitimate.
While Castle Associates is the most commonly quoted ruling on this issue, it is not the first decision to consider the problem. As early as 1911, the Missouri decision Litchfield v. Boogher: 142 S.W. 302 (1911) considered a similar problem. In this instance, the disputed easement was an alley created by express reservation in the city of St. Louis. The alley was not opened or used for many years and several property owners along the alley constructed improvements within the alley. Despite the long non-use of the alley, the Missouri court concluded that neither the principles of abandonment nor the statute of limitations would operate to extinguish the easement.
The Arizona court accepted a limited version of the rule in Sabino Town & Country Estates Assn. v. Carr: 920 P.2d 26 (1996). The disputed record easement was unrestricted, but the Sabino Town & Country Homeowners Association claimed that the right to use the easement for vehicular traffic was extinguished by 21 years of non-use. The court disagreed and adopted the rule for cases where partial extinguishment of an easement was claimed: “…when an unrestricted, perpetual, recorded easement of ingress and egress has not been needed or used for that purpose, and when the owner of the dominant estate has had uncontested access to the easement and has continuously used it for other purposes, “the maintenance of a fence which obstructs [the] unused easement does not terminate the easement by adverse possession.””
The Colorado court system incorporated the Castle Associates rule in Matoush v. Lovingood: 177 P.3d 1262 (2008). In its analysis, the court emphasized that the rule is a clarification of existing adverse possession doctrine rather than a basic change: “As applied, the Castle Associates rule does not create a new element for claims to terminate an easement by adverse possession. Rather, the rule informs a court's inquiry as to the element of adversity, specifically when use of the easement area becomes incompatible or irreconcilable so as to trigger the statutorily-mandated period for adverse possession in cases where the easement was expressly created but never used. The Castle Associates rule not only reinforces Colorado's policy concerns regarding land use but also conforms to the state's adverse possession statute and case law. On this basis, we follow the Castle Associates rule and hold that if an easement is expressly created but never used, then use of the easement area is not adverse and will not trigger the statutorily-mandated period of time for ad-verse possession until the easement holder needs to use the easement.” This decision also recognizes two additional states that have adopted the rule: Halverson v. Turner: 885 P.2d 1285, 1290 (Mont. 1994); and Mueller v. Hoblyn: 887 P.2d 500, 507 (Wyo. 1994).
In recent years, the Castle Associates rule has continued to spread through the legal system by many channels. In 2012, the Maryland court cited Wyoming law in its adoption of the rule in Purnell v, Beard & Bone: 38 A.3d 534 (2012). The following year, the Hawai’i decision Childs v. Harada: 311 P.3d 710 (2013) refers to the previous Colorado ruling for authority.
States that Have Rejected or Questioned the Rule
Many states have accepted the rule enunciated in Castle Associates, but a few have rejected this standard. In Hansen v. Davis: 220 P.3d 911 (2009) the Alaska court considered and rejected the rule. The easement for access and utilities was created in 1983 by express reservation in a deed. Shortly thereafter, the owners of the servient tract constructed raised garden patches within the easement area. This use continued through the 1990’s and a greenhouse was added in 2003, also within the easement area. These improvements remained in place uncontested until 2006.
Unfortunately, Hansen decided to take matters into his own hands when Davis refused to remove the improvements from the easement. Hansen disassembled the greenhouse, cleared the garden area and commenced construction of a driveway and sewer line. The court expresses its disapproval of such “self-help” methods of dispute resolution.
The lower court ruled that the easement had been extinguished by open adverse use for the statutory period. On appeal, the problems associated with possible adverse use of an unopened easement were raised.
Judge Fabe observes that the range of acceptable activities for the servient estate owner are expanded when an easement is not currently in use. Transient improvements such as gardens and landscaping will not be considered sufficient to initiate an adverse claim to extinguish a record easement.
However, when the judge was urged to adopt the Castle Associates rule as an even more restrictive standard against adverse claims of easements, he concluded: “We decline the Hansens’ invitation to adopt as a general rule the even more restrictive test for termination of an unused easement by prescription first set forth in Castle Associates v. Schwartz—that use by the owner of a property burdened by an easement is not hostile, even if it might prevent the easement holder from using the easement, until the easement holder has attempted to use the easement or a demand to use the easement has been refused.”
In a footnote included in Yagjian v. O’Brien: 477 N.E.2d 202 (1985), the Massachusetts court casts doubt on the applicability of the rule: “Castle Associates v. Schwartz, 63 A.D.2d 481 (N.Y. 1978), relied on heavily by the plaintiff, differs from this case in that it involved an unlocated easement of passage. The court there held that a fence was not adverse to the owner of the undeveloped backland until such time as he sought to use the right of passage and asked the servient owner to establish the location of the way. A somewhat analogous Massachusetts case is Burnham v. Mahoney, 222 Mass. 524, 529 (1916). Although we need not reach the point, it is at least doubtful that the law of this Commonwealth is consistent with the Castle Associates decision.”
Land Surveyors and other land use professionals should remember this rule when research reveals an undeveloped easement created by express grant or reservation. This article highlights the critical variations between the various state standards. Without an understanding of these concepts, practitioners cannot understand the effects of actions on the ground that may be detrimental to easement rights. An easement that might otherwise be dismissed as irrelevant may still be a legitimate burden on the servient estate—or the reverse.