B-123735, JULY 7, 1955, 35 COMP. GEN. 2

B-123735, JULY 7, 1955, 35 COMP. GEN. 2

REAL ESTATE - EASEMENTS, RIGHTS-OF-WAY, WATER RIGHTS, ETC. - PRESCRIPTIVE EASEMENT THE PURCHASER OF ISLAND PROPERTY ON WHICH THE COAST GUARD HAD A 25 POLE TELEPHONE LINE WHICH HAD BEEN IN USE FOR 60 YEARS WITHOUT THE GRANT OF A RIGHT-OF-WAY FROM ANY TITLE HOLDERS TOOK THE PROPERTY SUBJECT TO A PRESCRIPTIVE EASEMENT AND, THEREFORE, HE IS NOT ENTITLED TO ANY RIGHT-OF- WAY RENTAL.

TO ROBERT L. DRAKE, JULY 7, 1955:

REFERENCE IS MADE TO YOUR LETTER OF MARCH 22, 1955, REQUESTING REVIEW OF SETTLEMENT OF JUNE 22, 1954, WHICH DISALLOWED YOUR CLAIM FOR $492 AS RIGHT -OF-WAY RENTAL FOR THE COAST GUARD TELEPHONE LINE ON RADCLIFF ISLAND, SPRUCE HEAD, MAINE, FOR THE PERIOD APRIL 7, 1952, TO AUGUST 12, 1953.

IT APPEARS THAT THE INSTALLATION, CONSISTING OF 25 POLES AND TELEPHONE LINES, FORMERLY CROSSED THE ISLAND, A DISTANCE OF APPROXIMATELY ONE MILE. IT IS STATED IN YOUR LETTER THAT THERE WAS NO RIGHT-OF-WAY GRANTED BY YOU OR YOUR PREDECESSORS IN TITLE AT THE TIME OF THE INSTALLATION OF THE TELEPHONE LINE OVER 60 YEARS AGO. IN THE CIRCUMSTANCES, YOU CONTEND THAT THE PRESENCE OF THE POLE LINES ON THE ISLAND DURING THE PERIOD COVERED BY YOUR CLAIM CONSTITUTED A TRESPASS OF YOUR PROPERTY FOR WHICH YOU ARE ENTITLED TO JUST COMPENSATION.

THE FACTS AS REPORTED INDICATE AN ENTERING UPON THE ISLAND BY THE COAST GUARD WITHOUT AUTHORITY AND AN UNINTERRUPTED AND CONTINUOUS OCCUPANCY UNTIL AUGUST 12, 1953, WHEN THE POLE LINES ARE REPORTED TO HAVE BEEN REMOVED BY THE COAST GUARD. BY REASON OF THE NATURE OF THE INSTALLATION THE ENTRY UPON AND CONTINUOUS OCCUPANCY OF THE LOCATION OF THE LINE ON THE ISLAND BY THE COAST GUARD WAS SO OPEN, NOTORIOUS AND VISIBLE THAT IT MUST HAVE COME TO THE ATTENTION OF AND BEEN KNOWN TO ALL THE SUCCESSIVE OWNERS; YET, SO FAR AS THE RECORD SHOWS, NO OBJECTION OR PROTEST WAS MADE BY ANY OWNER UNTIL AFTER YOUR ACQUISITION OF OWNERSHIP OF THE ISLAND IN 1952.

IT HAS BEEN HELD THAT UNMOLESTED, OPEN, AND CONTINUOUS USE OF A WAY FOR 20 YEARS OR MORE, WITH THE KNOWLEDGE AND ACQUIESCENCE OF THE OWNER OF THE SERVIENT ESTATE, WILL BE PRESUMED TO HAVE BEEN ADVERSE AND UNDER A CLAIM OF RIGHT, AND THAT SUCH USE IS SUFFICIENT TO CREATE A PRESCRIPTIVE EASEMENT UNLESS OTHERWISE EXPLAINED. BURNHAM V. BURNHAM, 156 A. 823 ( ( ME.); DARTNELL V. BIDWELL, 98 A. 743 ( ME.). SEE, ALSO, DOZIER V. KRMPOTICH, 190 S.W.2D 696; 170 A.L.R. 778. AS PURCHASER OF THE PROPERTY YOU WERE CHARGED WITH NOTICE OF ANY RIGHTS OF THE PARTIES IN APPARENT POSSESSION OF ANY PART THEREOF, PARTICULARLY SINCE IN THE PRESENT INSTANCE THE INSTALLATION SHOULD HAVE BEEN PLAINLY VISIBLE TO ANYONE VIEWING THE ISLAND. IN SUCH CIRCUMSTANCES, IT MUST BE CONSIDERED THAT YOU PURCHASED THE PROPERTY SUBJECT TO A PRESCRIPTIVE EASEMENT PRESUMED TO HAVE BEEN ACQUIRED BY THE GOVERNMENT BY UNINTERRUPTED OCCUPATION THEREOF FOR MORE THAN TWENTY YEARS.