Drescher v. Johannessen
2012 R.I. LEXIS 108
| R.I. | 2012Background
- Drescher sought a prescriptive easement and a public-road designation over a 40-foot wide right-of-way serving lot 6 and lot 7-3/7-4 in Little Compton, RI.
- Johannessen held record title to the right-of-way; Drescher claimed use since 1984 as his access to lot 6.
- Trial evidence included multiple witnesses describing Drescher and invitees using the right-of-way openly and intermittently for years, with some permissive use by neighbors.
- The trial justice held that Drescher’s use was actual but not open, notorious, hostile, or continuous for ten years with clear and convincing evidence.
- The court also found the right-of-way was not a public road and that subdivision plans did not unambiguously show a dedicatory intent to dedicate it to the public.
- Final judgment was entered in favor of Johannessen; Drescher appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Prescriptive easement elements | Drescher contends use was open, notorious, hostile, and continuous for ten years. | Use was intermittent, permissive, and not hostile or under a claim of right for ten years. | Trial court finding affirmed; no prescriptive easement established. |
| Hostility and claim of right | Use demonstrated a hostile, adverse claim to the owner’s rights. | Permissive use by neighbors and lack of clearly adverse acts negate hostility. | No hostility proven; use consistent with permissive neighborly conduct. |
| Ten-year continuity | There was long, continuous use by Drescher and his workers. | Use was intermittent and not continuous for a ten-year period. | Continuity insufficient; ten-year period not demonstrated. |
| Public-road status | Subdivision plans and public acceptance show dedication of a public road. | Plans were unclear and there was no public acceptance; use was permissive. | Not a public road; no incipient dedication proven. |
Key Cases Cited
- Hilley v. Lawrence, 972 A.2d 643 (R.I. 2009) (prescriptive easement elements and burden of proof)
- Nardone v. Ritacco, 936 A.2d 200 (R.I. 2007) (clear and convincing evidence standard for prescription)
- Carpenter v. Hanslin, 900 A.2d 1136 (R.I. 2006) (burden to prove elements by clear and convincing evidence)
- Cahill v. Morrow, 11 A.3d 82 (R.I. 2011) (adverse-use analysis and hostility evidence)
- Lynch v. Robidoux, 878 A.2d 1021 (R.I. 2005) (incipient dedication and public acceptance; plat recordation impact)
- Robidoux v. Pelletier, 120 R.I. 425 (1978) (pleading and evidentiary standards for dedication and public roads)
- Volpe v. Marina Parks, Inc., 101 R.I. 80 (R.I. 1966) (plat dedication principles and public-road conceptions)
- Town of Barrington v. Williams, 972 A.2d 603 (R.I. 2009) (acceptance and general-use factors for dedications)
- Picerne v. Sylvestre, 404 A.2d 476 (R.I. 1979) (evidence of use demonstrating hostile possession and documentation)
- Altieri v. Dolan, 423 A.2d 482 (R.I. 1980) (neighborly permissive use affecting hostile-use analysis)