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From: megjpm@mb2c.UUCP (Jon Macks)
Newsgroups: net.legal
Subject: Re: Easements
Message-ID: <327@mb2c.UUCP>
Date: Sun, 10-Nov-85 21:40:26 EST
Article-I.D.: mb2c.327
Posted: Sun Nov 10 21:40:26 1985
Date-Received: Mon, 11-Nov-85 06:57:37 EST
References: <2862@brl-tgr.ARPA>
Distribution: net
Organization: Michigan Bell, Southfield, MI
Lines: 92

> I recall reading references to "easements" in the past -- as far as I
> recall, they involve rights of people to continue doing things as they
> have been done in the past, despite the contrary wishes of new property
> owners, specifically with regard to rights-of-way. Does the general
> public have easement rights, or do they only apply to specific
> individuals? I'd appreciate seeing comments from net people about easements
> in general, and also if the concept applies in this case:
> 
> There is an office building across the street from the building in which
> I work. This other building has a parking area built-into the ground
> floor, which provided a covered pathway for pedestrians to get into an
> adjoining parking garage building and also to cut through to the next
> street, thereby saving steps and allowing one to get out of inclement
> weather for a block. This area was also used by automobiles going into
> or leaving the parking garage, though that also has two other exits.
> 
> This building was either bought by a new owner, or is being renovated by
> the present owner (not sure which); in any case, the area through which
> pedestrians could walk was blocked at times during the construction
> work, but this blockage was always removed and the path opened up after
> the particular construction/demolition need that caused it to be blocked
> was over with. However, just in the past few days, a permanent-appearing
> fence has been installed which blocks the pedestrian access and cuts off
> the walkway.
> 
> Pedestrians have been using this walkway for as long as I have been
> working here, and therefore for some time before that. I have been
> working in this building since 1973, so there has been at least a decade
> of pedestrians having free access to walk through this area. There has
> never been any question that this is private property (there were signs
> up about the parking area being restricted to the tenants of the
> building), but there also was never any restraint or restriction on the
> public walking through this route.
> 
> Does this history of free public access give an easement and restrain
> the owners from blocking the route? Or does it give grounds for a civil
> suit or a court injunction to prohibit the owners from restricting
> public access now and in the future? I would appreciate any discusion
> or explanatory comments on this general area and this specific instance.
> 
> (What happens to an easement of right-of-way if the property is changed
> so that continued access is impossible? Say, instead of just putting up
> a fence by an area which continues to be used for parking, the whole
> building was torn down and a new building constructed which closed off
> the route entirely? Or would the easement prevent the legal
> construction of the new building at all in that case?)
> 
> Thanks for comments and advice!
> 
> Will Martin
> 
> UUCP/USENET: seismo!brl-bmd!wmartin   or   ARPA/MILNET: wmartin@almsa-1.ARPA

In my opinion, the public use of this passage-way did not give rise to any kind
of public rights to a permanent easement through the building.  Easements can
be acquired by continued use, but the character of the use has to meet certain
special requirements.  An easement acquired in this manner is called a "pre-
scriptive easement", and is similar in concept to property acquired by adverse
possession.  In order to ripen into a prescriptive easement, the property has
to be used as a right of way for the statutory period, usually somewhere around
15 years.  The use has to be open, notorious, and hostile to the rights of the
owner of the property.  

In the example you describe, it does not sound as if the use of the path through
the building was hostile.  In fact, it would appear the owner has allowed it for
years as a permissive use.  I'm sure that many stores with multiple entrys have
some pass through traffic, and I have never heard of a case giving the public
a permanent right of way through the store.  

This does raise an interesting issue for cities such as Minneapolis, which has
an extensive system of skyways between buildings which are open to the public.
Since many businesses are dependent upon the traffic generated by these sky-
ways, the result could be different in that situation.  I think the city of
Minneapolis has passed special laws dealing with the establishment of the sky-
ways in that city

There is an interesting Michigan case where two adjacent buildings used a com-
mon stairwell, which was located entirely on the premises of one of the build-
ings.  When the owner of the building with the stairwell in it wanted to tear
it down, the other building's owner brought suit to require that the stairwell
be maintained.  The court held that the building without the stairwell had
acquired a prescriptive easement to maintain the stairwell, even though this
meant the easement was difined as a space existing in mid-air (apparently, the
stairwell did not extend all the way down to the ground floor).

Getting back to your example, I doubt that any court would make the owner of
the building keep this path-way open to the public.  This opinion comes from
my many years of experience as an attorney for a major utility whose specialty
just happens to be right of way matters.  And let me tell you, this is a pretty
narrow area of the law that not many lawyers are familiar with.

                                    Just another Slime Ball Lawyer