Hafner v. Hansen – July 28, 2009

Hafner contends the trial court erred in in treating an affirmative defense by Hansen as a counterclaim to grant and create a prescriptive easement, in favor of Hansen, for an underground sewer pipe. Hafner also contends the evidence was insufficient to support the creation of the prescriptive easement, and that the trial court erred in disregarding her damages claim.

From
The Circuit Court of Arlington County; J.P. Alper, Judge.

Counsel
Mark P. Friedlander, Jr. (Friedlander, Friedlander & Earman, P.C.) for appellant.

Robert J. Duffett (Baskin, Jackson, Hansbarger & Duffett) for appellee.

Assignments of Error
1. The Court erred in treating an affirmative defense by Appellee/Defendant as a counterclaim to grant and create a prescriptive easement in favor of Appellee.

2. The Court erred in applying circumstantial evidence from which inferences could be drawn equally for either side, to grant a party a prescriptive easement for a hidden, underground sewer pipe which requires proof by clear and convincing evidence when an equally probable inference supports a permissive use defeating a claim for prescriptive easement and no proof of being open and notorious for the tacking of ownership to support the required twenty years.

3. The Court erred in disregarding Plaintiff’s proof of damages.

Date Granted
7-27-2009