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A municipality established that it had a prescriptive easement to discharge storm water across private property because the discharge was adverse, open, notorious, continuous and uninterrupted for a period of more than 21 years.
Gehres v. Falls Township, 948 A.2d 249 (Pa. Commw. Ct. 2008).
In 1960, Township installed drainage pipes to carry water underneath a Township road to discharge storm water into a ditch on Landowner’s property. In 2004, Landowner filed a complaint alleging trespass and nuisance and sought an injunction. The Township countered that it had a prescriptive easement across Landowner’s property. The trial court found that the Township had a public prescriptive easement. Landowner then filed a motion for judgment notwithstanding the verdict, which the trial court denied.
Landowner appealed to the Commonwealth Court and argued that the Township failed to establish the elements of a prescriptive easement. A prescriptive easement is created by adverse, open, notorious, continuous and uninterrupted use of land for a period of 21 years. Landowner contended that the Township’s use was permissive rather than adverse. However, testimony showed that the previous owners of the property did not object to the Township’s use, but never gave specific permission. The Commonwealth Court held that absence of objections will not establish a permissive use and that proof of permission is needed. Therefore, the Commonwealth Court found that the Township’s use of the property was adverse.
Next, Landowner argued that the use was not open and notorious. However, the Commonwealth Court found that the drainage pipes are clearly visible upon a cursory inspection of the property and that the Township has periodically cleaned the pipes since 1960. The Commonwealth Court found that a prescriptive easement was established because the Township’s use was adverse, open, notorious, continuous and uninterrupted from 1960 to the present.
Landowner then argued that judgment notwithstanding the verdict should have been granted because the trial court’s decision was against the weight of the evidence. The Commonwealth Court found, however, that there was sufficient evidence to support the verdict.
Opinion Date: May 13, 2008
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