Zere v. Dist. of Columbia, 17-CV-829

• Decision Date: 06 June 2019
• Docket Number: No. 17-CV-829,17-CV-829
• Citation: 209 A.3d 94
• Parties: Kebreab ZERE, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

209 A.3d 94

Kebreab ZERE, Appellant,

v.DISTRICT OF COLUMBIA, Appellee.

No. 17-CV-829

District of Columbia Court of Appeals.

Submitted September 21, 2018

Decided June 6, 2019

Kebreab Zere, appellant pro se.

Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan, Solicitor General, Stacy L. Anderson, Acting Deputy Solicitor General, and James C. McKay, Jr., Senior Assistant Attorney General, were on the brief for appellee.

Before Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge, and Nebeker, Senior Judge.

Blackburne-Rigsby, Chief Judge:

Pro se appellant Kebreab Zere appeals the trial court's July 7, 2017, order granting appellee District of Columbia's motion for summary judgment and entering a declaratory judgment that the public has a prescriptive easement to traverse an alley between O and N Streets, NW, for which he is the property owner.¹ Mr. Zere argues that the trial court erred in granting summary judgment in favor of the District, and that the establishment of a prescriptive easement constitutes a de facto unconstitutional taking of property without just compensation. We affirm.

I.

Mr. Zere purchased five of the six lots forming the alley between the row houses located in the 3200 block of O Street, NW and the 3200 block of N Street, NW from tax sales. Mr. Zere acquired title to each of the lots in separate tax-sale foreclosure actions between 2006 and 2011. Mr. Zere appears to be an experienced tax-lien purchaser.² Subsequently, he attempted to erect a fence to block the alley, and combine the five lots into one. However, the Historic Preservation Review Board denied Mr. Zere's proposed consolidation of the five lots.

In response to Mr. Zere's attempt to block the alley, the District of Columbia filed a complaint for declaratory judgment and injunctive relief against Mr. Zere to prevent his interference with the public's right to traverse the alley. The District subsequently filed a motion for summary judgment alleging that the lots owned by Mr. Zere were encumbered by a public prescriptive easement, and that Mr. Zere took title to the lots subject to that easement. The District argued that members of the public had traversed the alley for many years, that this use was open, notorious, adverse, and continuous for over fifteen years, from 1980 to 1995, and, thus, a public prescriptive easement had been established by 1995. The District further asserted that, although the alley was privately owned, the District had long recognized its public use, which was evidenced, in part, by the District of Columbia Department of Transportation's ("DDOT") maintenance of the street light in the alley and pavement of the alley in 2003. The District further alleged that the easement over the alley was perfected by 1995, before Mr. Zere acquired title, and that the District's request for declaratory judgment was not a new acquisition that would constitute a taking or require compensation.

As part of its motion for summary judgment, the District filed a statement of undisputed material facts, pursuant to Super. Ct. Civ. R. 12-I(k), which was supported by declarations from three individuals who lived in townhouses abutting the alley — John Queenan, Gerald Turner, and Mary Carter. Taken together, the three declarations asserted that, from 1980 to at least 1995, the residents used the alley daily without asking permission. The declarants also observed members of the public using the alley on a daily basis for a number of purposes without asking for permission. Moreover, the declarants assert that the public's usage of the alley is visible to anyone who lives adjacent to it, or who has passed by it in recent years.

Mr. Zere did not file a statement of disputed material facts pursuant to Rule 12-I(k) in response to the District's motion for summary judgment. As a result, the trial court was entitled to assume that the facts set forth in the District's statement of undisputed material facts were admitted without controversy. See Jane W. v. President & Dirs. of Georgetown Coll. , 863 A.2d 821, 826 (D.C. 2004). In his subsequent opposition to the summary judgment motion, Mr. Zere made the following arguments: (1) there were no records maintained by DDOT to support a public prescriptive easement, and DDOT only repaved the alley once in 2003; (2) the easement does not meet the adversity element of a prescriptive easement because the trespassing is permissive; and (3) any prescriptive easement was extinguished by the tax-sale foreclosure. Mr. Zere further argued in his opposition that, under the Takings Clause of the Fifth Amendment, he should be compensated for the value of the lots.

The trial court granted summary judgment in favor of the District. The trial court held that there was no material disputed issue of fact that the public had traversed the alley openly, notoriously, continuously, and adversely in excess of the fifteen-year statutory period to establish a public easement by prescription. The trial court also held that pursuant to D.C. Code § 47-1382(a)(3) (2012 Repl.), the alley was conveyed to Mr. Zere subject to a public easement observable by an inspection of the property. The trial court explained that the alley was "clearly burdened" by the public's right to traverse it, and this right was easily observable to any tax-lien purchaser. This appeal followed.

II.

A. Summary Judgment

We review a trial court's order granting summary judgment de novo . Newmyer v. Sidwell Friends , 128 A.3d 1023, 1033 (D.C. 2015). Mr. Zere's first argument is legal in nature, in which he claims his tax-sale purchase of the lots extinguished all unrecorded easements. To the extent that Mr. Zere is raising a res judicata defense, we conclude it to be without merit. D.C. Code § 47-1382(a)(3) provides that tax-sale purchasers take a fee simple interest in property subject to "[e]asements of record and any other easement that may be observed by an inspection of the real property." (emphasis added). Therefore, the tax sale would not have extinguished any preexisting easement.³ The question then becomes whether such an easement existed and, in particular, whether the trial court could make this determination on summary judgment.

In determining whether summary judgment was appropriate, we view the evidence in the light most favorable to the non-prevailing party and we draw all reasonable inferences in that party's favor. Liu v. U.S. Bank Nat'l Ass'n , 179 A.3d 871, 876 (D.C. 2018). Summary judgment is appropriate where there is no genuine issue of material fact and a party is entitled to a judgment as a matter of law. Id. (citation and internal quotation marks omitted). Once a party provides sufficient evidence to establish its entitlement to judgment as a matter of law, the burden shifts to the adverse party to set forth facts placing issues in dispute. Newmyer , 128 A.3d at 1033. The opposing party cannot rely solely on denials. See , e.g. , Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (non-moving party must provide "sufficient evidence supporting the claimed factual dispute" in order to defeat a motion for summary judgment) (internal citations omitted); Newmyer , 128 A.3d at 1033 ("mere ‘conclusory allegations’ are insufficient to defeat the [summary judgment] motion.") (internal citations omitted).

"An easement is an interest in land owned by another person, consisting in a specific limited right to use or control the land." Martin , 99 A.3d at 708 (internal alternations, brackets, and citation omitted). The elements to establish a prescriptive easement by the public are the same elements required to establish a private prescriptive easement, and the burden rests on the claimant to show by a preponderance of the evidence that a prescriptive easement was established. Hefazi v. Stiglitz , 862 A.2d 901, 910 (D.C. 2004) ; see also 25 AM. JUR. 2D Easements and Licenses § 36 (2014). To establish the existence of a prescriptive easement, a claimant must demonstrate that use of another's land was open, notorious and adverse for a period of at least fifteen years. Martin , 99 A.3d at 711 ; see also D.C. Code § 12-301(1) (2012 Repl.) (statute of limitations for bringing a claim for the recovery of land is fifteen years). The sole element that Mr. Zere takes issue with is whether the use was adverse.

Adverse use of land is use executed in a manner that does not recognize the right of the landowner to stop it. Chaconas v. Meyers , 465 A.2d 379, 382 (D.C. 1983). Adversity may be presumed from proof of open and continuous use for the statutory period absent contrary evidence. Id. Permissive use can defeat a claim of adversity, and can be granted explicitly or implicitly by the landowner through the interactions between the parties. See id. at 382-383. However, mere acquiescence is not permission. Martin , 99 A.3d at 712.

The District's statement of facts supported each of the requisite elements of a prescriptive easement. The declarations of three residents of townhouses abutting the alley—Queenan, Turner, and Carter—showed that the public's use was open, notorious, and adverse for the fifteen-year statutory period. Mr. Queenan resided in a townhouse abutting the alley from 1980 until 2016, and stated that during those thirty-six years he used the alley daily and observed his neighbors and the public use the alley daily. Mr. Queenan stated that the alley had never been blocked, aside from a few rare occasions "when the United States government did so for security reasons." Mr. Queenan further stated that he never asked nor observed anyone else ask for permission to use the alley and that he did not believe that anyone had a right to stop him from using the alley.

Mr. Turner and Ms. Carter, who have been residing in townhouses abutting the alley since 1989 and 1996, respectively, corroborated Mr. Queenan's declaration. Mr. Turner and Ms. Carter both stated that since they began living in...