KEEPING CURRENT PROPERTY CASES EASEMENTS: Presumption of permissive use is rebutted when the use is the only, or most economical, access to user’s land. In 2013, Stowe purchased 15.8 acres of landlocked property. Her predecessors had access to the property for agricultural and recreational purposes by crossing a farm road on the Smiths’ property that led to a nearby highway. Before her purchase, Stowe received permission from the Smiths to use the farm road to reach the highway. Later Stowe decided to build a home on her property and sought an express easement from the Smiths, which was refused. Stowe then filed suit, claiming a prescriptive easement. The trial court found a nonexclusive right of way over the farm road. The Smiths appealed, opposing the finding and also seeking to limit the scope of any easement to agricultural and recreational purposes. The supreme court affirmed, acknowledging that normally there is a presumption of permissive use over a neighbor’s land, which does not ripen into a prescriptive easement even when used for over 20 years. The presumption is overcome, however, if the claimed use was the only means of ingress and egress to the claimant’s property. In such a situation, the landowner is charged with presumptive knowledge that the use is under a claim of right. The owner must take some affirmative action to restrict the neighbor’s use of the right-of-way to prevent the creation of a prescriptive easement. Here, it was undisputed that the farm road was the only means of vehicular ingress and egress to the Stowe Keeping Current—Property Editor: Prof. Shelby D. Green, Elisabeth Haub School of Law at Pace University, White Plains, NY 10603, sgreen@law.pace.edu. Contributor: Prof. Darryl C. Wilson.
Keeping Current—Property offers a look at selected recent cases, literature, and legislation. The editors of Probate & Property welcome suggestions and contributions from readers.
property for more than 20 years, either by Stowe herself or by her predecessors in title, establishing the requisite claim of right. The holding was not a total victory for Stowe because the prescriptive easement she acquired was limited to agricultural and recreational purposes. Smith v. Stowe, 2023 Ala. LEXIS 106, 2023 WL 5989274 (Ala. Sept. 15, 2023). EMINENT DOMAIN: Title acquired by municipality through eminent domain does not relate back to filing of condemnation action to relieve owner of obligation to pay property taxes. The City of Joliet filed a condemnation complaint against the plaintiff ’s apartment complex in 2005. The city later acquired a fee-simple title to the property in 2017. During the pendency of the condemnation action, the property owners continued to operate the apartment complex and continued paying property taxes without protest. In 2018, the property owners sought a refund of more than $6 million in property taxes paid during the period of condemnation litigation. The plaintiffs argued the law dictated that once condemnation proceedings were complete, the title received by the government body related back to the date of the original filing, thus entitling the property owners to a refund. The trial court dismissed the complaint. The appellate court affirmed in part and reversed in part, agreeing with the plaintiffs that once the condemnation proceedings
were complete and title to the property conveyed to the city, the title “related back” to the date of filing the condemnation complaint, such that any taxes paid during this period were not lawfully owed. The supreme court reversed, overruling the precedent relied on by the appellate court, City of Chicago v. McCausland, 41 N.E. 2d 745 (Ill. 1945). The court declared that the filing of a condemnation complaint is not a taking. Instead, the plaintiffs remained owners of the property—they had control over the property and were not deprived of any government benefits— during the time of the condemnation proceedings. The court concluded that it would be unreasonable to hold that they had no duty to pay property taxes accruing during that time. MB Financial Bank v. Brophy, 2023 Ill. LEXIS 464 (Ill. Sept. 21, 2023). HOMESTEAD: Exemption requires both occupancy and ownership of the claimed property. Brady was the sole owner of a single-family residence where she lived with her husband and children. She filed a bankruptcy petition, claiming a $120,000 homestead exemption and later amending the petition to claim an additional $120,000 exemption on behalf of her non-owner spouse. The New Hampshire homestead statute provides: “Every person is entitled to $120,000 worth of his or her homestead, or of his or her interest therein, as a homestead.” N.H. Rev. Stat. § 480:1. The trustee in bankruptcy objected to the second claim. After a hearing, the bankruptcy court concluded that to maintain a homestead right under the statute, a person claiming the exemption must demonstrate both occupancy and an ownership interest in the homestead property. Brady appealed the ruling to the federal district court, which certified to the state supreme court the question
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