Tuesday, July 19, 2016

Conservation Easements and Prescription

Here's an Alabama case that likely escaped most people's attention: Quinn v. Morgan (am I the only one entertained by the fact that these are now two trendy kid names) from the Court of Civil Appeals in Alabama, 2016 WL 3855034. It's a great case for a review of prescriptive easements, turning on the hostility prong of the test -- which always gives my students the most trouble.

Morgan had a relatively easy time of showing that she and her husband had established a prescriptive easement across property owned by Quinn and Stough (different parcels) to access their land. What intrigues me about the case is that there was a conservation easement burdening the Stough land. The Stough land  was burdened by a conservation easement held by the Alabama Forest Resources Center. The AFRC challenged the prescriptive easement and was recognized to have standing to do so along with the other landowners. AFRC was unable to stop the recognition of a prescriptive easement. The court did not discuss the terms of the conservation easement, so we don't know whether the PE conflicted with the CE. This case suggests however that CEs could be hampered by PEs burdening the same property. CE holders will need to be vigilant monitoring the land to guard against PEs, suggesting that annual monitoring may not be enough. Moreover, it suggests the holders might need to be more alert to potential problems of adverse possession. Arguably, a conservation easement could be terminated by adverse possession as well.

https://lawprofessors.typepad.com/land_use/2016/07/conservation-easements-and-prescription.html

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