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Monday, December 15, 2008

A.S. Haley Parses the Dennis Canon

A lawsuit nearly always starts with one party to a dispute taking a position that surprises, angers, and finally provokes the other party into doing something which that other party never intended to do in the first place. Example: you have been living in the same rural home for the last thirty years. You have always reached your home by way of a dirt or gravel road that takes off from a county road and winds its way through three or four other properties before reaching your parcel (and maybe it continues through yours to go on to still more parcels before it dead-ends). The neighborhood has settled into a well-known pattern, and everyone is comfortable with the arrangement.

Now one of your neighbors along the road, say one of the ones whose property you have to cross, retires, moves away, or dies---so that his parcel eventually is sold to a new owner. That new owner, say, comes from a fairly large urban or suburban environment, and has dreams of retiring to the country. But no one told him that there were three or four other owners down the road who would be driving through his property twice a day.

Unhappy about having what he sees as his rural peace and quiet disturbed, he consults a surveyor, and learns that there are no recorded easements over the road through his property. So he hires a contractor, puts up big metal gates across the road on each side of his property, and locks them.

You and your neighbors are outraged at having your principal access blocked. (This being the country, there may be an alternative route you can use to get to your home, but it is much less convenient---perhaps it is very poorly maintained, and floods out during the winter months, or perhaps it takes you way out of your way.) You take a bolt cutter and cut the locks, and continue to use the road as before. You probably do not bother to close the gates.

In a week or so, you find special, hardened-steel locks on the gates which your bolt-cutters cannot cut through. At this point, depending on your degree of anger, you either (a) rent a small bulldozer and knock down the gates, or (b) bring a lawsuit. (And if you choose the first alternative, then the owner of the gates starts the lawsuit, and sues you, or has the sheriff arrest you for vandalism.)

Who "started" the lawsuit? As you can see, it is not necessarily the person who filed it. But under the facts I have given, it is easy to pinpoint the action that changed the status quo that had prevailed for over thirty years: it was the decision to block the road by the owner who had just moved in. For better or for worse, he simply assumed he "knew" what the law was, and took a position (that the road could not be used by those who were using it) which he assumed the law would support, based on the lack of any recorded easements.

But the law is not so black-and-white. In time, our hypothetical neighbor will learn about "prescriptive rights"---the right to use a road even without a deeded easement. If a person uses someone else's road openly and without asking or receiving permission, and continues that use regularly for what the law defines as the "prescriptive period" (in California, it is five years; in other States, it can be ten or even twenty years), then that person acquires a "prescriptive easement" to continue that use, which the law will recognize and protect.

The doctrine of prescriptive easements stems from a social policy that favors the active use and development of land, and discourages passive, absentee ownership. If you live in San Francisco, and visit your rural property only once every six months for a week or so, you might never notice the tire tracks that indicate someone else is using your road on a regular basis. And if more than five years go by before you finally find out, you will most likely lose any lawsuit you bring to stop the use.

Now, to the point of this piece: I want to ask---has the prescriptive user "stolen" anything from you? In one sense, of course, he has: he has acquired an easement across your land without having to compensate you for the diminution in value which your parcel will suffer as a consequence of having an easement across it. But in the eyes of the law, you have done the same thing as granting him a deeded easement without charging him for it. The law simply presumes that if five years have gone by without your objecting to the use, or trying to do anything to stop it, you must have no objection to what your neighbor has been doing.

(At this point, let us pause to recall the immortal words of Mr. Bumble in Charles Dickens' Pickwick Papers. When told that the law "presumed" that a wife acts under the direction of her husband, Mr. Bumble replied:

If the law supposes that, . . . the law is a ass—a idiot. If that’s the eye of the law, the law is a bachelor; and the worst I wish the law is that his eye may be opened by experience—by experience.

Objecting to what the law "presumes", or "supposes", will not get you very far, as Mr. Bumble learned to his chagrin. In the same way, the landowner who objects to the presumption behind prescriptive rights will receive short shrift from the court.)

All, right, let's bring the lesson home. As reported on several blogs, the HoB/D Listserv has carried a somewhat extensive debate on the appropriateness of the Episcopal Church (USA)'s spending some $2 million on legal fees in church property disputes over the past year. Those who suggested that the money might have been better devoted to the Church's mission were generally met with argument to the effect that "the ones who are leaving started the lawsuits", or "the departers forced us to sue, because they took the property with them, and it belongs to us." I think I am not being unfair if I summarize the general argument thus:

By canon law [the Dennis Canon], all parish property is held in trust for ECUSA. Therefore, while the members of a parish may choose to leave the Church, they cannot take the property with them---that is theft. Acts of theft leave us with no choice but to file suit. It is the only way the Church can preserve its property for future generations. Thus the $2 million had to be spent, and much more will have to be spent on lawyers before this is over.

Recently, however, facts about the Dennis Canon have emerged which tend to cast the foregoing argument in a slightly different light. For one thing, from what appears in the official records of the 1979 General Convention, the Canon may not have been adopted in the same form by both Houses concurrently, as would be required for it to take effect. And for another thing, it does not appear that the enactment of the Canon was reported to the parishes that were directly affected; the first mention of the Canon in the Episcopal News Service Archives does not occur until 2001---some twenty-one years after its supposed adoption. (I have commented in this post on the disconnect between the deputies elected to General Convention and the parishes that elect them.)

Read it all here.

What we have here is a form of "prescriptive right" to parish property that was established in a rush under questionable circumstances, in the waning days of the 1979 General Convention, and then lay dormant for years until a property dispute required its disinterment in 2001. The recognition it has received in some courts in the years since has tended to give it full legitimacy in the eyes of those who invoke it.

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