If a pipe has been in place on my property for more than 15 years can I remove it?
Full Question:
Answer:
The owner of the pipe and/or utility may be able to establish a claim to keep it there through the doctrine of adverse possession.
Adverse possession requires actual, open, notorious, exclusive, hostile, and continuous possession. According Oklahoma statute, Oklahoma Code §12-93; 60-333, the possession must be continuous and uninterrupted for at least fifteen (15) years. In an action based upon a tax deed or certain judicial sales, the time period is reduced to five years. There must be a claim to the property in an "open, public and visible manner" showing that the claimant "has exclusive control over the land, under a claim of right to such exclusive possession." The claimant must show such a "change in the character of the possession" so as to remove any doubt as to the claimant's holding of the property, or as to the owner's knowledge that such claim is being made. Adverse possession cannot be established by inference; all the above-stated elements must be proved by "clear and positive proof." Since adverse possession claims are fact intensive, each claim will be examined on a case by case basis and a determination made depending on the facts of that particular situation.
What if the claimant never notified the record owner that he or she was making a claim to the property?
The record owner never affirmatively 'knew" that a claim was being made. Can the record owner use this as a valid defense to a quiet title action? A landowner recently tried this defense to no avail. The same defense, alleging that the claimant did not establish a "claim of right' to the property since the record owners were not put on notice of the adverse claim, was attempted in the late 1970's without success.
An adverse possessor is not required to knock on the door of the record owner and tell him that a claim is being made to his property. Rather, the record owner, assuming he is an owner of "ordinary prudence" (and no excuse is given for an owner that does not exercise ordinary prudence) needs to examine his property, go on the property and see what changes have been made, if any, and determine if anyone is there that should not be there. A record owner who is taking care of his property will know its status; he will have "notice" of any adverse claims simply by checking on the property. And if he does not check on his property, and if an adverse claimant is in actual, open, notorious, exclusive and hostile possession of the property, then the record owner will have constructive notice of the adverse possession claim.
The Oklahoma courts tell us that if the claimant's actions are definite and observable, such that an owner, if he visited the property, would see that a claim was being made to his property, or at least enough to put the owner on inquiry, then such actions constitute constructive notice of adverse possession. The record owner does not have to have actual knowledge that a claim is being made. Constructive notice, based on the actions of the adverse claimant, is sufficient.
The outcome changes dramatically if an adverse possessor has titled quieted against him in a quiet title or ejectment action and then continues to remain in possession of the property. The Oklahoma Supreme Court considered a case where the claimant retained possession after title had been quieted in the record owner. In that case, the court denied the adverse possession claim even though the claimant was listed as the owner on the tax rolls and the evidence indicated that the claimant was not holding possession subordinate to any person. While those facts may have been sufficient to provide constructive notice in the typical adverse possession case, constructive notice is not effective in this situation. In order to succeed, the claimant must show that "express notice" of the adverse claim was "brought home" to the record owner; otherwise, the claim will fail.
A prescriptive easement (right of way) may also be claimed.
The elements for obtaining an easement by prescription are basically the same as with a claim for fee title by adverse possession. The activity on the property must be actual, notorious, hostile, open, visible, continuous, exclusive and with a claim of right, such that parties will see that the property is not held in subordination to any title or claims of others, but against all titles and claimants. There is a presumption in favor of possession in subordination to the rightful owner. The claimant must prove each element with clear and positive proof; inferences are not permitted. If the use is permissive, then it will not give rise to a prescriptive easement no matter how long it is exercised. The claimant must demonstrate a claim of right to the easement.
1. Nature of the Claim
A prescriptive easement gives the claimant the right to use another's land, not actual title to the land. The most common fact patterns in a prescriptive easement situation concern a claimant's alleged use of a roadway on neighboring property. The claimant uses the roadway for ingress and egress. A vehicle drives over the roadway across the neighbor's property. Of course, the vehicle is not continuously driving across the property. This is very different from a claim for title by adverse possession where the use of the land is more constant. As a result of the factual differences between a fee versus easement situation, it is factually much more difficult to establish a prescriptive easement than fee title by adverse possession.
2. Unique Issues
Because of the factual differences, the court examines prescriptive easements using two different tests. If the land on which the easement is claimed is open land (not enclosed by a fence), then the burden for proving the elements of a prescriptive easement is more stringent on the claimant. The reason is that use of unfenced land, especially in open range areas, for roads is quite common and is often permissive. If the land on which the easement is claimed is enclosed land, then the court will presume that the owner had knowledge of the adverse use, ultimately resulting in a rebuttable presumption of an easement once the requisite time has passed.
The courts have not provided an excellent example of when the facts show a prescriptive easement and when they do not. In fact, the Oklahoma courts have rarely made any specific application of the facts to the law in prescriptive easement cases. Instead, the courts simply state the facts (sometimes) and determine that the facts either do or do not support the elements for a prescriptive easement. The issue is generally decided based on whether or not the claimant's use was permissive. Extensive analysis is generally left out. In any event, the following cases are examples of fact patterns where the courts have denied or granted a prescriptive easement:
(i). The claimant used a neighbor's unenclosed land to access a public road, even though necessity did not demand such use. The trial court granted the easement, but the trial court's minute order granting the easement failed to provide a legal description of the easement. On appeal, the court found that the use was permissive, did not meet the fifteen year statutory requirement and was not under a claim of right, and that the court's minute order was void for failure to contain a legal description of the purported easement.
(ii). The claimants used a roadway over their neighbors' unenclosed farm for approximately 40 years. When the neighbors passed away and their daughter moved to the farm, she enclosed the farm, including the roadway. Since the claimants refused to close the gate providing access to the farm, the daughter refused to give the claimants access to the roadway. The claimants alleged that their use of the road for so many years created a presumption of adverse use. The court did not agree. The court noted that the burden is more stringent for a claim of an easement over unenclosed land and found that the use was initially permissive and continued to be permissive.
(iii). The claimant's initial use of a roadway over unenclosed land was permissive. As such, the claimant had the burden of proving when the use became adverse. The land was ultimately enclosed with a fence which was maintained and closed at certain times of the year. The claimant only used the roadway during portions of the year. As a result, the trial court's granting of a prescriptive easement was overruled.
(iv). Where the claimant had used a roadway over enclosed property for approximately fifty years, the court found a presumption of an easement. The land owner then had the burden of rebutting the presumption by showing permissive use. The court determined that the trial court's conclusion that the claimant's use met the requirements for a prescriptive easement was not clearly against the weight of the evidence. Hence, the prescriptive easement was granted.