Arizona Court ofAppeals Division Two Holds That Where a Claimant Has Demonstrated Open, Visible, Continuous, and Unmolested Use of Land, the Claimant’s Use Is Presumed to Be Under Claim of Right and Without Permission.

Defendant Michael Pouliot owned a parcel of land adjacent to vacant lot owned by a trust (“the Trust”).  He and the previous owner of his parcel had used an unpaved road across the Trust’s lot and also maintained a parcel of the Trust’s land (“adjoining parcel”) since 1968.  The Trust brought suit against Pouliot for trespass and Pouliot answered and counterclaimed, claiming a prescriptive easement for the road and adverse possession over the adjoining parcel.  After a bench trial, the trial court entered judgment in favor of the Trust despite finding that Pouliot and his predecessor had used the land openly and continuously since 1968.  The court also awarded the Trust attorneys’ fees and costs.  Pouliot appealed.

The ArizonaAppeals Court reversed in part, vacated, and remanded, holding that “[w]here a claimant has shown an open, visible, continuous, and unmolested use of the land . . . for the [limitations period], the use will be presumed to be under a claim of right, and . . . the burden is upon the owner to show that the use was permissive.”  Gusheroski v. Lewis, 64Ariz. 192, 198, 167 P.2d 390, 393 (1946).  In reaffirming Gusheroski, the Court interpreted several seemingly contradictoryArizona opinions dealing with the presumption set forth in that case.  Ultimately, the Court held that because the Trust did not contest the fact that Pouliot’s use of the land was open, visible, continuous, and unmolested, it had the burden of showing that his use of the Trust’s land was permissive. 

The Court also explained that permission may be either express or implied and that once permission is given, any subsequent use presumptively remains permissive.  The Trust, however, was unable to show that any permission was given to either Pouliot or his predecessor for use of the land.  The Court rejected the Trust’s claim that permission given to Pouliot in 1996 to use the road defeated his claim for a prescriptive easement because the easement already existed due to the continuous use of the road by Pouliot’s predecessor beginning in 1968.  The Court, however, remanded with regard to the prescriptive easement because Pauliot’s predecessor made statements indicating that she believed that her right’s to the road were subordinate to the property owner’s right’s, which may have demonstrated permissiveness.  With regard to the adjoining parcel, the Court held that the superior court erred because there were no facts whatsoever demonstrating permissiveness.  Finally, the Court vacated the award of attorneys’ fees and costs to the Trust, and instead awarded Pouliot attorneys’ fees and costs for his adverse possession claim.     

Judge Brammer authored the opinion; Chief Judge Pelander and Presiding Judge Howard concurred.