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Home / Opinion Digests / Most Important Opinions / Real Property – Easement – Implied by Prior Use – By Necessity – Limitation — Predecessors’ Intent – By Prescription – Hostile Use (access required)

Real Property – Easement – Implied by Prior Use – By Necessity – Limitation — Predecessors’ Intent – By Prescription – Hostile Use (access required)

Barbour v. Pate : The parties’ land was once part of a larger tract, which was divided between the owner’s two nephews. The trial court should have determined the expectations of the grantor and grantee when determining the scope of plaintiffs’ easement implied by prior use and easement by necessity; instead, the trial court relied on the primary historical uses of the path at issue. We vacate and remand for further proceedings. Moreover, while the trial court concluded that use of the path “was reasonably necessary to the enjoyment of the plaintiffs’ land by the plaintiffs,” it did not conclude which uses of the path were reasonably necessary for plaintiffs’ convenient and comfortable enjoyment, as the uses existed at the time of the grant.

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