Wels v. Hippe

To establish that the use of an existing road is adverse, a plaintiff must show that (1) the use of the road interfered with the owner's’ use of the road or (2) that the use of the road was undertaken under a claim of right, of which the owners were aware.

Plaintiff seeks the court to find a prescriptive easement over an existing road on the defendant’s property.  On appeal, the Court is reviewing the decision of the trial court, affirmed by the Court of Appeals, granting such an easement.  The Court took issue with the Court of Appeals’ framing of the legal requirement for adverse possession in terms of the three elements set out in a comment to the Restatement (First) of Property.  According to the Court, the definition of “adverse” in the Restatement was never endorsed by the Court, and was legally insufficient, as it did not the require owner to be aware that the road was used under a claim of right.  After reviewing the evidence on the record, the Court held that the plaintiff’s notice (depositing dust on the defendant’s property when he drove on the road) was legally insufficient to establish that the defendant was aware of the plaintiff’s claim of right.  Reversed.