209 A.3d 94
D.C.2019Background
- Pro se appellant Kebreab Zere acquired five of six narrow lots forming an alley between O and N Streets, NW via tax-sale foreclosure actions between 2006–2011; he later tried to fence and consolidate them.
- The District of Columbia sued for declaratory and injunctive relief, alleging a public prescriptive easement across the alley established by open, notorious, continuous, and adverse public use from at least 1980–1995.
- The District supported summary judgment with declarations from three adjacent homeowners who attested to daily public and neighbor use of the alley for decades without permission.
- Zere did not file a Rule 12-I(k) statement disputing the District’s facts; in opposing summary judgment he argued (1) lack of DDOT records, (2) use was permissive (not adverse), (3) any easement was extinguished by the tax-sale, and (4) the easement would constitute a taking requiring compensation.
- The trial court concluded the prescriptive easement was established and that tax-sale purchasers take title subject to easements observable on inspection; it denied Zere’s takings claim as forfeited for failure to plead it as a compulsory counterclaim.
Issues
| Issue | Plaintiff's Argument (Zere) | Defendant's Argument (District) | Held |
|---|---|---|---|
| Whether a public prescriptive easement exists | Use was permissive, declarants not credible; no public record | Public use was open, notorious, continuous, and adverse for 15+ years | Easement established; summary judgment for District |
| Whether tax-sale foreclosure extinguished unrecorded easements | Tax-sale extinguished easements so lots were unencumbered | D.C. law preserves easements of record and easements observable on inspection against tax purchasers | Tax-sale did not extinguish an easement observable on inspection |
| Whether summary judgment was appropriate given affidavits and lack of cross-examination | Affidavits require cross-examination; credibility disputes preclude summary judgment | Rule 56 does not entitle summary-judgment opponents to cross-examination; burden shifted to Zere to produce contrary evidence | Summary judgment appropriate; court may credit affidavits for purposes of motion without cross-exam |
| Takings/compensation claim | Establishing an easement effected a taking requiring just compensation | Takings claim not timely pleaded as a compulsory counterclaim; therefore forfeited | Takings claim forfeited for failure to raise as compulsory counterclaim |
Key Cases Cited
- Martin v. Bicknell, 99 A.3d 705 (D.C. 2014) (elements for prescriptive easement; adversity required but exclusivity not)
- Newmyer v. Sidwell Friends, 128 A.3d 1023 (D.C. 2015) (summary judgment reviewed de novo)
- Liu v. U.S. Bank Nat’l Ass’n, 179 A.3d 871 (D.C. 2018) (summary judgment standards; view evidence for nonmovant)
- Hefazi v. Stiglitz, 862 A.2d 901 (D.C. 2004) (burden to prove prescriptive easement by preponderance)
- Anderson v. Liberty Lobby, Inc., 447 U.S. 242 (U.S. 1986) (nonmovant must produce sufficient evidence to create genuine dispute)
- Chaconas v. Meyers, 465 A.2d 379 (D.C. 1983) (adversity may be presumed from open, continuous use; permissive use defeats adversity)
- Jane W. v. President & Dirs. of Georgetown Coll., 863 A.2d 821 (D.C. 2004) (consequences of failing to dispute Rule 12-I(k) statement)
- Smith v. Tippett, 569 A.2d 1186 (D.C. 1990) (possession by open and continuous use establishes presumption of title absent contrary evidence)
- Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195 (D.C. 1991) (mere denials insufficient to create material factual dispute)
- Anderson v. Ford Motor Co., 682 A.2d 651 (D.C. 1996) (no entitlement to cross-examination at summary judgment stage)