Connole v. Babij
An easement is not a privilege, but, rather, a property interest giving the owner the right to use the land of another for a special purpose. Michael and Nancy Connole and James Maguire brought this action against Michele Babij alleging that Babij obstructed and interfered with a certain right-of-way shared in common with the plaintiffs and others over a road abutting their respective properties. The trial court rendered judgment for the defendant. The plaintiffs appealed claiming that the trial court erred in determining that the plaintiffs had a license to use the right-of-way, subject to an annual fee, after determining that the plaintiffs had easements allowing passage over the right-of-way. The Appellate Court reversed that part of the judgment finding that the defendant owned the fee to the right of way and requiring the plaintiffs to pay the defendant $100 per year for the privilege of passing over the right-of-way subject to forfeiture of the privilege if the fee is unpaid. The judgment was otherwise affirmed. The trial court found, albeit implicitly, that the plaintiffs had deeded rights of passage over the right-of-way. Review of the parties' respective chains of title confirmed that the plaintiffs had deeded interests in the right-of-way. The trial court's finding that the plaintiffs also had prescriptive easements, while not inconsistent, was extraneous. However, it was incorrect, as a matter of law, for the court to have determined, after finding the existence of the easements, that passage by the plaintiffs onto the right-of-way was a privilege subject to an annual fee and possible forfeiture. An easement is distinct from a license in that a license gives a mere privilege, does not create any interest in the subject property and does not run with the land. The finding of a license was inconsistent with the evidence, which did not establish that the defendant owned the fee to the right-of-way. The trial court abused whatever equitable discretion it had in ignoring its finding of easements and creating a license without factual support. The trial court found, as a factual matter, that the defendant had not proved a claim of adverse possession. This finding was not clearly erroneous.