                                                                  Supreme Court

                                                                  No. 2013-15-Appeal.
                                                                  (WC 10-406)
                                                                  Dissent begins on page 19


           Butterfly Realty et al.            :

                     v.                       :

      James Romanella & Sons, Inc.            :



              Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                          OPINION

       Justice Indeglia, for the Court. In this appeal, we revisit an ongoing dispute between

two commercial landowners over the existence of a prescriptive easement used by delivery

trucks to access a loading dock. The plaintiffs, Butterfly Realty and Dairyland, Inc. (plaintiffs),

appeal from a Superior Court judgment denying their claim for a prescriptive easement on the

property of the defendant, James Romanella & Sons, Inc. (JR & Sons or defendant). This case

came before the Supreme Court on December 10, 2013, pursuant to an order directing the parties

to appear and show cause why the issues raised in this appeal should not be summarily decided.

After hearing the parties’ arguments and reviewing their written submissions, we are satisfied

that cause has not been shown. For the reasons set forth in this opinion, we affirm the judgment

of the Superior Court.

                                                  I

                                        Facts and Travel

       The facts of this case were previously discussed in this Court’s recent opinion, Butterfly

Realty v. James Romanella & Sons, Inc., 45 A.3d 584 (R.I. 2012) (hereinafter, Butterfly I). In

                                               -1-
that decision, we vacated a judgment in favor of defendant and remanded the matter to the

Superior Court.      Upon remand, the parties waived the presentation of additional evidence.

Accordingly, the facts provided in this opinion come from the one and only trial conducted in

this case. We briefly recount below those facts relevant to the instant appeal.

          The property at the center of this dispute consists of three commercial lots located in the

Town of Westerly where East Avenue meets Granite Street and which are identified on

assessor’s plat No. 77 as lots Nos. 330, 331, and 332. JR & Sons owns the most southerly of the

three parcels, lot No. 330, which has frontage on East Avenue. At all times relevant to this

appeal, a commercial building containing a laundromat has occupied the northern portion of lot

No. 330. Lot No. 331, which is owned by Dairyland, Inc., lies immediately to the north of lot

No. 330 and has frontage on Granite Street. Lot No. 332 sits immediately to the north of lot No.

331 and also has frontage on Granite Street. On August 8, 1985, Albert Romanella, then-

president of JR & Sons, conveyed lot No. 332 by warranty deed to Butterfly Realty (Butterfly).

That same day, Albert Romanella also assigned his lease for lot No. 331 to Butterfly.

          Butterfly owns a single commercial building that occupies most of lots Nos. 331 and

332. 1 The southwestern corner of the building houses a loading dock, the door to which faces

southward towards JR & Sons’s lot. Because the building sits nearly on top of the boundary line

between lots Nos. 331 and 330, delivery trucks cannot access the loading dock without entering

onto JR & Sons’s property. Accordingly, on August 16, 1985, JR & Sons granted Butterfly an

express easement, recorded in the Town of Westerly’s land evidence records, which “permit[s]

ingress and egress to and from the loading dock at the southwest corner of [Butterfly’s]

building[.]”    The terms of the easement, however, expressly prohibit deliveries by “semi-



1
    Part of the southwest corner of the building actually encroaches upon JR & Sons’s lot No. 330.
                                                 -2-
trailers.” The southern boundary of the easement runs roughly parallel to the side of Butterfly’s

building and becomes wider as it moves from east to west.

       From 1985 onward, Butterfly’s building housed a succession of businesses, all of which

made some use of the loading dock. A liquor store operated out of the building from 1985 to

1989. After the liquor store vacated the premises, Butterfly leased a portion of the building to an

auto parts store. From 1993 through 2010, another tenant of Butterfly’s, Auto Audio, also

operated a business out of a different portion of the building. The various businesses received

deliveries from trucks of different sizes and with differing frequencies. In general, however, the

delivery trucks would drive over JR & Sons’s lot, beyond the bounds of the express easement, to

access the loading dock.

       In May 2010, JR & Sons hired an engineer to determine the precise location of the

express easement’s southern boundary after a delivery truck damaged a building on JR & Sons’s

lot. JR & Sons then ordered the installation of “concrete pylons” along the southwestern

boundary of the express easement. With the pylons in place, it was nearly impossible for

delivery vehicles to directly access the loading dock. On June 14, 2010, Butterfly 2 responded by

filing a complaint in Washington County Superior Court, claiming a prescriptive easement over

JR & Sons’s lot. 3 The defendant filed a counterclaim for a permanent injunction to compel

Butterfly to comply with the terms of the express easement.

       A two-day bench trial on the parties’ claims commenced on December 8, 2010. The

testimony and exhibits presented at trial indicated that delivery trucks typically used one of two

routes to access the loading dock. These two paths were referred to as the “brown route” and the

2
 A later amended complaint included Dairyland, Inc. as a plaintiff.
3
 Butterfly and Dairyland also filed claims for an implied easement, an easement by necessity, an
easement by implication, an easement by acquiescence, and adverse possession. The only claim
before the Court in the instant appeal is plaintiffs’ claim for a prescriptive easement.
                                               -3-
“green route” at trial. See Appendix. 4 When following the brown route, a truck would enter lot

No. 330 from a curb cut on East Avenue and then drive westward, in between the laundromat

and the Butterfly building, before making a left turn behind the laundromat. The delivery truck

would then back up to the loading dock. When using the green route, a delivery truck would

enter lot No. 331 from a curb cut on Granite Street, then drive southwestward across several

painted parking spaces, 5 and cross onto lot No. 330, where it would continue along the brown

route to reach the loading dock. At trial, both parties presented several witnesses who testified

about the delivery trucks’ use of JR & Sons’s lot. We summarize below the relevant testimony. 6

       Shawn Martin, a part-owner of Butterfly, testified on behalf of plaintiffs. He explained

that his partner, an attorney, had negotiated the exact terms of the express easement in 1985 but

stated that he “roughly” understood where the boundaries of the express easement were located.

According to Mr. Martin, neither Albert Romanella nor Albert Romanella’s partner, Charles

Sposato, had ever voiced any objections about the delivery trucks’ use of lot No. 330 to access

the loading dock.

       The plaintiff also presented Mr. Martin’s wife, Rita Martin, who managed the liquor store

from the time it opened in 1985 until the time it closed in 1989. During the many hours that she

spent at the store, Mrs. Martin personally observed trucks make deliveries to the loading dock.

She estimated that the liquor store received approximately twelve to fifteen deliveries per week.

Mrs. Martin further estimated that the trucks’ use of the brown and green routes was either

roughly equal or that the brown route received slightly more use than the green route. She

indicated that she had never received any written or oral communications from anyone affiliated

4
  An engineering drawing, appended to this opinion, depicts the “brown” and “green” routes
testified to at trial. The express easement appears on the drawing as a dotted line.
5
  Some of the parking spaces actually straddle the boundary line between lots Nos. 330 and 331.
6
  Three pretrial depositions were additionally admitted into evidence as full exhibits.
                                              -4-
with JR & Sons about the delivery trucks’ use of lot No. 330 to access the loading dock. Mrs.

Martin testified that she and her husband had a “friendly relationship” with Mr. Sposato.

        Mrs. Martin explained that, for approximately one month each year, one or more tenants

of JR & Sons would sell Christmas trees alongside the northern exterior wall of the laundromat.

She testified that the actual dimensions of the area occupied by the trees would vary slightly

from one year to another. Nonetheless, according to her recollection, the trees never impeded the

trucks’ abilities to make deliveries.

        Paul Williams also testified on plaintiffs’ behalf. Mr. Williams worked in the auto parts

store from 1991, approximately two years after the store opened, until 2006. 7 He explained that

the auto parts store usually received deliveries at the loading dock on a weekly basis. According

to Mr. Williams, those deliveries arrived by semi-trailer trucks which were approximately fifty

feet in length. He also testified that sometimes a garbage truck would pick up trash from the

loading dock or a United Postal Service (UPS) truck would deliver a large item to the loading

dock. Mr. Williams estimated that the delivery trucks’ use of the brown and green routes was

roughly equal, but he clarified that a truck driver’s ability to use the green route depended on

whether cars were parked in the parking spaces located southeast of Butterfly’s building. See

Appendix. Mr. Williams testified that the annual Christmas tree sales did not prevent the

delivery trucks from entering through the curb cut on East Avenue and reaching the loading

dock.




7
  The record is somewhat vague concerning delivery trucks’ use of lot No. 330 during the time
period from 1989 to 1991. As we explained in our previous opinion, this ambiguity is not
necessarily fatal to plaintiffs’ claim because the time from 1991 forward could satisfy the
statutory ten-year period for a prescriptive easement. See Butterfly Realty v. James Romanella
& Sons, Inc., 45 A.3d 584, 587 n.2 (R.I. 2012)
                                              -5-
       The plaintiffs’ final witness was Craig Jackson, the owner of Auto Audio. Mr. Jackson

testified that he personally supervised about half of Auto Audio’s deliveries. According to Mr.

Jackson, UPS trucks made deliveries to the loading dock about twice per day and used both the

brown and green routes. Approximately once every two weeks, a garbage truck would use the

loading dock to pick up both Auto Audio’s and the auto parts store’s trash. Consistent with Mr.

Williams’s testimony, Mr. Jackson testified that he observed semi-trailer trucks accessing the

loading dock on a weekly basis to make deliveries to the auto parts store. He confirmed that the

average size of the area occupied by the Christmas trees varied from year to year but maintained

that the only time he could recall deliveries being impeded is when the concrete pylons were

installed in 2010.

       Charles Sposato, a 50 percent owner of JR & Sons, testified for defendant.            In a

deposition submitted into evidence at trial, Mr. Sposato stated that he was unaware of the exact

location of the express easement until May 2010 when the survey was completed. Mr. Sposato

further indicated in his deposition that he had previously believed that Albert Romanella had an

oral, rather than a written, agreement with Butterfly that delivery trucks were allowed to cross

over JR & Sons’s property to reach the loading dock. Accordingly, he testified at trial that he

was surprised in May 2010 when he saw for the first time the deed granting Butterfly an express

easement. He insisted that, since 1985, he had consistently believed that Butterfly should pay for

its use of JR & Sons’s lot. Approximately twenty-five years ago, he expressed this belief to

Albert Romanella.    After Albert Romanella passed away in 2004, Mr. Sposato considered

requesting that Butterfly pay rent but ultimately did not approach anyone from Butterfly at that

time. He did not demand rent from anyone at Butterfly until approximately six months before

trial when he telephoned Paul Martin, Shawn Martin’s brother. According to Mr. Sposato’s



                                              -6-
recounting of the telephone conversation, he requested that Butterfly pay $900 per month for its

tenants’ use of lot No. 330.

       According to Mr. Sposato, delivery trucks had more than once caused damage to JR &

Sons’s property. On those occasions, Mr. Sposato spoke directly with the drivers of the trucks,

but he did not tell anyone from Butterfly, Dairyland, or the auto parts store that the delivery

trucks could no longer use JR & Sons’s lot. When asked at trial why he never forbade the

delivery trucks from entering upon JR & Sons’s property, Mr. Sposato explained, “I just wanted

to be a good neighbor I guess. I just never did.”

       Mr. Sposato also testified about his personal observations of the delivery trucks’ use of

JR & Sons’s lot. He indicated that, since 1995, he has visited JR & Sons’s property on a daily

basis, except for several weeks each year that he spends in Florida. During his time at the

property, Mr. Sposato personally observed semi-trailer trucks making deliveries to the loading

dock. According to Mr. Sposato, the trucks mostly used the brown route. He clarified, however,

that there are “many different trucks that come [into] this property. They are not all trailer

trucks. They don’t all use that brown [route] at all. * * * They come in our property * * * all

ways that I have noticed.” Mr. Sposato recalled a dozen or more instances when he had moved

his car to accommodate the delivery trucks. He explained that the truck drivers did not ask him

to move his car, but he would voluntarily do so if he noticed that the trucks were holding up

traffic. Mr. Sposato confirmed that the Christmas tree sales took place on the northern side of

the laundromat almost every year from 1985 to 2006 and lasted from approximately

Thanksgiving through December 23 or 24.




                                               -7-
       James Romanella also testified for defendant. James 8 served as vice president of JR &

Sons until 2004, when he became president. He recalled a telephone conversation that he had

with the manager of the auto parts store about the Christmas trees. According to James’s

recounting of the conversation, the manager was concerned that the size of the area occupied by

the trees was making it difficult for the delivery trucks to reach the loading dock. In response,

James suggested that the delivery drivers use smaller trucks. He also informed the manager that

the tree sales “would continue as long as [his] tenant wanted to do it.” James had no recollection

of when this conversation occurred other than that it had taken place sometime between 1985

and 2005.

       The trial justice denied plaintiffs’ claim for a prescriptive easement in a written decision

filed on March 18, 2011. The plaintiffs appealed to this Court. In an opinion issued on June 27,

2012, we concluded that the trial justice had committed an error of law because he

“inappropriately required Butterfly’s tenants’ use of the disputed land to be inconsistent with JR

& Sons’s use * * *.” Butterfly I, 45 A.3d at 589. Accordingly, we vacated the trial justice’s

decision and remanded the matter for further proceedings. Id. at 592. We additionally instructed

that on remand the trial justice should address certain inconsistent findings he had made with

regard to the Christmas trees’ impact on Butterfly’s continuous use of the prescriptive easement.

Id. at 591. Finally, we directed the trial justice to determine whether the various tenants’ use of

lot No. 330 could be imputed to Butterfly for the purposes of establishing a prescriptive

easement. Id. at 591-92.

       Upon remand and after the parties waived the presentation of additional evidence, the

trial justice issued a second written decision on November 9, 2012 in which he again denied

8
 To avoid confusion, we refer to James Romanella by his first name. In so doing, we intend no
disrespect.
                                               -8-
plaintiffs’ claim for a prescriptive easement. In his second decision, the trial justice found that

the delivery trucks’ use of lot No. 330 was actual, open, and notorious. He concluded, however,

that such use was not sufficiently hostile to establish an easement by prescription. According to

the trial justice, JR & Sons had given permission for the delivery trucks to traverse its lot in order

to access the Butterfly building’s loading dock. He also concluded that the Christmas tree sales

had interrupted the continuous use of the disputed area. The trial justice did not address whether

the various tenants’ use of lot No. 330 could be imputed to Butterfly.

       Judgment entered on November 20, 2012. The plaintiffs timely appealed to this Court.

Additional facts will be provided, as needed, to resolve the issues raised on appeal.

                                                 II

                                       Standard of Review

       We afford “much deference to the factual findings of a trial justice sitting without a jury

in a civil case.” DiPippo v. Sperling, 63 A.3d 503, 507 (R.I. 2013) (quoting McGarry v. Coletti,

33 A.3d 140, 144 (R.I. 2011)). We will not disturb the trial justice’s factual findings “unless

such findings are clearly erroneous or unless the trial justice misconceived or overlooked

material evidence or unless the decision fails to do substantial justice between the parties.”

Greensleeves, Inc. v. Smiley, 68 A.3d 425, 433-34 (R.I. 2013) (quoting Grady v. Narragansett

Electric Co., 962 A.2d 34, 41 (R.I. 2009)). “If the trial justice’s decision ‘reasonably indicates

that [he or she] exercised [his or her] independent judgment in passing on the weight of the

testimony and the credibility of the witnesses it will not be disturbed on appeal unless it is clearly

wrong or otherwise incorrect as a matter of law.’” Cahill v. Morrow, 11 A.3d 82, 86 (R.I. 2011)

(quoting Now Courier, LLC v. Better Carrier Corp., 965 A.2d 429, 434 (R.I. 2009)).

Furthermore, the trial justice may “draw inferences from the testimony of witnesses, and such



                                                -9-
inferences, if reasonable, are entitled on review to the same weight as other factual

determinations.” Id. (quoting DeSimone Electric, Inc. v. CMG, Inc., 901 A.2d 613, 621 (R.I.

2006)). In contrast, “we review de novo the trial justice’s conclusions of law.” Greensleeves, 68

A.3d at 434 (citing State v. Gianquitti, 22 A.3d 1161, 1165 (R.I. 2011)).

                                                III

                                           Discussion

       A few years ago, this Court observed that the “ancient roots and arcane rationale” of

prescriptive land rights have become increasingly difficult to “square[] with modern ideals in a

sophisticated, congested, peaceful society.” Cahill, 11 A.3d at 88, 87 (quoting Finley v. Yuba

County Water District, 160 Cal.Rptr. 423, 427 (Cal. Ct. App. 1979)). Although claims for

adverse possession and prescriptive servitudes have continuing vitality in this jurisdiction, our

jurisprudence on prescriptive rights in recent years has charted a consistent path by showing

solicitude for the rights of record owners, and, correspondingly, guarding against the potential

for uncompensated loss by holding claimants to a high burden of proof. See Drescher v.

Johannessen, 45 A.3d 1218, 1227 (R.I. 2012); Cahill, 11 A.3d at 88; see also Pelletier v.

Laureanno, 46 A.3d 28, 35-36 (R.I. 2012) (rejecting claim for easement appurtenant).             A

claimant of an easement by prescription “must show actual, open, notorious, hostile, and

continuous use under a claim of right for at least ten years.” Drescher, 45 A.3d at 1227 (quoting

Hilley v. Lawrence, 972 A.2d 643, 651-52 (R.I. 2009)). A plaintiff claiming an easement is held

to a higher standard of proof than a plaintiff in an ordinary civil case. Pelletier, 46 A.3d at 35.

He or she bears the heavy burden of proving “each element by a preponderance of clear and

convincing evidence.” Carpenter v. Hanslin, 900 A.2d 1136, 1146 (R.I. 2006); see also Hilley,




                                              - 10 -
972 A.2d at 652 (each element for a prescriptive easement must be proven by “clear and

satisfactory evidence”).

       Any analysis of a claim for a prescriptive right must take for its point of origin the

principle that such rights “are not favored in the law, * * * since they necessarily work

corresponding losses or forfeitures on the rights of other persons[.]” Drescher, 45 A.3d at 1227

(quoting 25 Am.Jur.2d Easements and Licenses § 39 at 536 (2004)); Butterfly I, 45 A.3d at 592

n.8 (stating same). “The burdens of prescription * * * fall onto the shoulders of the subservient

estate.” William G. Ackerman & Shane T. Johnson, Outlaws of the Past: A Western Perspective

on Prescription and Adverse Possession, 31 Land & Water L. Rev. 79, 92 (1996). Those burdens

include the “infringement of a landowner’s rights, a decrease in value of the servient estate, * * *

the generation of animosity between neighbors, a source of damages to land * * * and the

creation of uncertainty for the landowner.” Cahill, 11 A.3d at 87-88 (quoting Ackerman, 31

Land & Water L. Rev. at 92).

       These foundational principles are equally applicable when the holder of an express

easement seeks to expand that easement by prescription. An attempt by the holder of an express

easement to unilaterally “expand the physical size, purpose or use of the easement beyond the

terms as contained in the original grant * * * unduly interferes with the reserved rights of the

owner of the servient tenement.” 28A C.J.S. Easements § 231 at 449 (2008). In cases such as

this one where the easement holder seeks to change not only the frequency or type of use, but

also the dimensions of an express easement, the enlargement “‘does more than merely increase

the burden upon the servient estate; it has the effect of enveloping additional land,’”—land

which the owner has purposely reserved for him or herself. Northwest Pipeline Corp. v. Luna,




                                               - 11 -
241 P.3d 945, 948 (Idaho 2010). Here, Butterfly seeks to expand a limited express easement into

an amorphous prescriptive easement that will envelop nearly the entirety of JR & Sons’s lot. 9

        An enlargement of an express easement by prescription must satisfy all the traditional

requirements for acquiring a prescriptive right. See Jon W. Bruce & James W. Ely, Jr., The Law

of Easements and Licenses in Land, § 8:16 (2014). 10 In the instant case, the trial justice found

that Butterfly had failed to prove by clear and convincing evidence that its use was hostile to the

record owner or that it was continuous for the statutory period. Butterfly challenges both of

these findings on appeal. Before turning our attention, however, to the merits of the trial

justice’s analysis of the element of hostility, we briefly address plaintiff’s threshold contention

that the trial justice was prohibited upon remand from performing any analysis of the element of

hostility.



9
  Despite the designation of the “brown” and “green” routes, the witnesses’ collective testimony
at trial clearly indicated that trucks took all different paths to navigate around the maze of cars,
Christmas trees, buildings, and other obstacles that from time to time littered this small parking
lot. Accordingly, although Butterfly attempts to confine its claimed easement to the “brown”
and “green” routes, the reality is that every time a large truck tries to navigate those pathways
and finds a car or other obstacle in its way, it will stray from the designated routes and envelop
even more of JR & Sons’s property. Granting such an easement would be difficult to square
with “this Court’s obligation to create the least burdensome easement possible[.]” Reitsma v.
Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 839 (R.I. 2001) (Goldberg, J., dissenting).
10
   It has been said that “[e]nlargement by prescription of an express easement is rare” due to “a
lack of the elements necessary to create it.” Turner v. Bouchard, 32 A.3d 527, 534 (Md. Ct.
Spec. App. 2011) (quoting Annot. 110 A.L.R. 915, 916 (1937)). For example, in a case factually
similar to the one presently before this Court, a commercial landowner had an express easement,
dating back to 1910, over part of the neighboring defendant’s property to allow trucks to access a
loading dock. Mensch v. Netty, 408 N.W.2d 383, 384 (Iowa 1987). Modern-sized trucks and
semi-trailers, however, could not back up to the loading dock within the narrow bounds of the
express easement and therefore began to encroach farther onto the defendant’s land. See id. at
384-85. After a truck damaged the defendant’s building, the defendant refused to permit the
trucks to continue to use his land to reach the loading dock. See id. at 385. Consequently, the
plaintiff sought to establish that he had acquired a prescriptive easement for the additional
footage. See id. The Iowa Supreme Court held that the plaintiff could not meet his burden of
proof on the element of hostility because “[t]he fact that truck drivers had used the additional
space to enter the alley at most shows permissive use.” Id. at 387.
                                               - 12 -
                                                    A

                                           Scope of Remand

        According to Butterfly, the trial justice exceeded the scope of this Court’s remand by

revisiting the element of hostility. Butterfly argues that this Court had “already ruled that the

trial justice had applied an incorrect legal standard in determining whether Butterfly had proven

hostility, and did not invite the trial justice to revisit this element of proof.” 11

        As we have explained, “lower courts * * * that receive our remand orders may not exceed

the scope of the remand or open up the proceeding to legal issues beyond the remand.” Pleasant

Management, LLC v. Carrasco, 960 A.2d 216, 223 (R.I. 2008) (quoting Willis v. Wall, 941 A.2d

163, 166 (R.I. 2008)). “When a case has been once decided by this [C]ourt on appeal, and

remanded to the [Superior Court], * * * [the Superior Court] * * * cannot * * * intermeddle with

it, further than to settle so much as has been remanded.” Id. (quoting United States v. Thrasher,

483 F.3d 977, 981 (9th Cir. 2007)).

        We see no reason why our conclusion in Butterfly I that the trial justice made an error of

law would prohibit the trial justice from revisiting the element of hostility. To the contrary, our

previous opinion stated that the trial justice’s “misapplication of law sufficiently tainted the

balance of [his] decision, including any factual determinations.” Butterfly I, 45 A.3d at 590. We

therefore conclude that the trial justice was not only authorized but indeed was intended upon

remand to apply the correct legal standard to the facts to make a second determination as to

whether Butterfly had proven hostile use.



11
   Butterfly additionally suggests that the trial justice based his second decision on a legal theory
that was never argued. The record belies this assertion because JR & Sons argued permission
from the outset of this case. In his opening statement on the first day of trial, JR & Sons’s
counsel took the position that Butterfly’s use was permissive.

                                                  - 13 -
                                                 B

                                             Hostility

       In his second decision, the trial justice found that Butterfly could not meet its burden of

proof on the element of hostility because its delivery trucks’ use of JR & Sons’s property was

permissive. The claimant of an easement by prescription bears the burden of proving by clear

and satisfactory evidence that his or her use was adverse to that of the record owner. To

demonstrate hostile use, the claimant must show use “without permission asked or given * * *

such as would entitle the owner to a cause of action against the intruder [for trespass].”

Drescher, 45 A.3d at 1228 (quoting Tavares v. Beck, 814 A.2d 346, 351 (R.I. 2003)). On the

issue of permission, this Court long ago articulated the relevant rule as follows:

                       “It is the well settled rule that use by expressed or implied
               permission or license, no matter how long continued, cannot ripen
               into an easement by prescription, since one of the elements
               essential to the acquisition of the easement, namely, user as of
               right, as distinguished from permissive use, is lacking.” Tefft v.
               Reynolds, 43 R.I. 538, 542-43, 113 A. 787, 789 (1921).

Since this pronouncement in Tefft, this Court has continuously acknowledged that express or

implied permission defeats a claim for a prescriptive right. See Burke-Tarr Co. v. Ferland Corp.,

724 A.2d 1014, 1019 (R.I. 1999) (distinguishing landowner’s “express or implied permission,”

which will defeat a claimed easement, from landowner’s mere awareness, which will not); cf.

Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 834 (R.I. 2001) (concluding that

“permission, express or implied, was never given” for claimant’s use of landowner’s property).

       For a landowner who wishes to be an accommodating neighbor without creating a

permanent burden on his or her land, “[t]he easiest remedy * * * is to give [the adverse user]

permission to continue the use * * *. This effectively eliminates the adverse individual’s claim

immediately.” Ackerman, 31 Land & Water L. Rev. at 95. One of the most well-recognized

                                               - 14 -
dangers of prescriptive easements is their tendency to “discourage[] neighborly conduct and

accommodation. Landowners are required either to formalize permissive arrangements, or to

prevent use by others to avoid the risk that rights will be established by prescription.”

Restatement (Third) Servitudes, § 2.17 cmt. c at 265-66 (2000). The more formal a reviewing

court requires that permission to be, the greater the uncertainty for the landowner.         See

Ackerman, 31 Land & Water L. Rev. at 95.

       While this Court has required something more than silent acquiescence to show that a use

was permissive, see Burke-Tarr Co., 724 A.2d at 1019, a landowner need not formally or

expressly grant a user permission since “[p]ermission sufficient to preclude a claim for a

prescriptive easement * * * may be inferred from surrounding circumstances.” 28A C.J.S.

Easements § 45 at 245 (2008); see Burke-Tarr Co., 724 A.2d at 1019 (acknowledging that “an

inference of permissive use * * * would defeat the element of hostile use”). For example, in

Drescher, this Court concluded that a claimant’s use of a right-of-way was permissive, where the

facts and circumstances supported an inference that the claimant’s use was pursuant to a

“‘perceived invitation.’” 12 Drescher, 45 A.3d at 1228-29 (emphasis added); see also Daniels v.

Blake, 81 R.I. 103, 109, 99 A.2d 7, 11 (1953) (“friendly relations between respondent and

complainants while the latter were openly using the strip to pass to and from the shore * * *

tends to establish their use originally as merely permissive”).

       Even where the issue of permission is raised, the burden is never on the landowner to

demonstrate that the use was permissive. See Altieri v. Dolan, 423 A.2d 482, 483 (R.I. 1980).

12
   In Drescher v. Johannessen, 45 A.3d 1218 (R.I. 2012), we additionally concluded that the trial
justice appropriately considered the fact that neighbors and individuals other than the claimant
had accessed the landowner’s property while under the “impression” that their use was
permissive. See id. at 1229. We held that these facts in Drescher supported an inference of
permission sufficient to defeat the claimed easement despite the fact that the permission was
“illusionary” rather than actual. Id.
                                               - 15 -
The burden at all times remains on the claimant to establish adverse use by strict proof. See id.

“The determination of whether the claimant [of a prescriptive right] sustained this burden of

proof involves an exercise by the trial justice of his factfinding power.” Jerry Brown Farm

Association, Inc. v. Kenyon, 119 R.I. 43, 52, 375 A.2d 964, 968-69 (1977); see Hazard v. East

Hills, Inc., 45 A.3d 1262, 1271 (R.I. 2012) (claims for prescriptive rights are “fact-intensive

inquir[ies]”). Accordingly, the deference that this Court affords the trial justice is at its zenith.

Even if more than one inference may be drawn from the record, we are bound to uphold the trial

justice’s inferences so long as they are reasonable. Jerry Brown Farm Association, Inc., 119 R.I.

at 51, 375 A.2d at 968. We conclude that the record in this case supports the trial justice’s

reasonable inference that Butterfly’s use of JR & Sons’s lot was permissive.

       Viewing the record from the proper deferential perspective, the testimony demonstrated

that Charles Sposato—unaware of the boundaries of the express easement—begrudgingly

allowed Butterfly to use his property for nearly twenty-five years, due, at least in part, to his

belief that Albert Romanella had given oral permission for Butterfly’s trucks to traverse JR &

Sons’s lot. Mr. Sposato consciously refrained from requesting any compensation from Butterfly

for those twenty-five years. Since Mr. Sposato apparently believed that Butterfly had already

received an explicit oral grant of permission from Albert Romanella to use JR & Sons’s lot, he

could not reasonably be expected to have given Butterfly another express or formal grant of

permission. Nor does the law require him to have done so. JR & Sons’s behavior did, however,

go beyond mere tolerance and awareness. Mr. Sposato and James Romanella took affirmative

steps consistent with an inference of permission. Mr. Sposato moved his car to allow the trucks




                                               - 16 -
access to the loading dock. 13 When the manager of the auto parts store called to complain about

the Christmas trees, James Romanella did not prohibit the trucks from entering while the trees

were in place but instead responded by insisting that the trucks’ use of the lot must remain

subservient to his tenants’ use of the lot. When his building was struck in 2001 and again in

2004, James had two separate conversations with Paul Martin, in which Mr. Martin apologized

and promised James on each occasion that it would not happen again. After these conversations,

James continued to allow Butterfly’s trucks to use JR & Sons’s property for nearly another six

years. Mr. Sposato explained that he never forbade the delivery trucks to enter JR & Sons’s lot

because he was trying to be a good neighbor.

       This series of interactions adequately supports the trial justice’s conclusion that JR &

Sons “permitted the use to continue” by giving its “assent, accompanied with various

restrictions, [to] control[] the use of the area.” Such actions go beyond the “inactive status of

quiescence or unqualified submission” which we have previously found insufficient to support

an inference of permission. Reitsma, 774 A.2d at 832-33 (quoting Garrett v. Gray, 266 A.2d 21,

27-28 (Md. 1970)). The trial justice therefore correctly concluded that Butterfly had not met its

burden of clearly and convincingly proving its claim for a prescriptive easement. “A prescriptive

easement cannot be established if permission to use the property can be inferred where the

relationship between the parties is one of neighborly cooperation and accommodation.” 28A

C.J.S. Easements § 45 at 245. The element of “hostility” does not refer to the emotional



13
   Although Mr. Sposato’s testimony about moving his car is difficult to follow, he explained
that sometimes Butterfly’s delivery trucks would enter JR & Sons’s property south of the
laundromat. The trucks would then reverse direction in front of his office and back up to the
loading dock, passing roughly in between the office and the rear of the laundromat. Since Mr.
Sposato’s car was parked near the southwest corner of the laundromat, he would occasionally
have to move it to allow the delivery trucks sufficient room to maneuver. On the appendix, JR &
Sons’s office appears as a building marked “1 st[or]y masonry plaza.”
                                               - 17 -
temperature of the neighbors’ relationship. See Butterfly I, 45 A.3d at 589. Thus, the fact that

Mr. Sposato and James Romanella may have accommodated Butterfly’s trucks with less than

enthusiasm and alacrity does not turn a permissive use into a hostile one. 14

       After their building was damaged one time too many, Mr. Sposato and James Romanella

investigated the boundaries of the express easement in May 2010 and decided that they would no

longer permit Butterfly’s uncompensated use of JR & Sons’s property beyond those boundaries.

Accordingly, they asked for monthly rent and installed the pylons, which actions prompted

Butterfly to file suit almost immediately. JR & Sons’s revocation of permission does not suffice

to prove hostility. If it did, a landowner such as JR & Sons who has previously permitted

someone to use his or her property would be placed in the untenable position of either allowing

the use to continue indefinitely or revoking permission and suffering the imposition of a

permanent burden on his or her property. Under our law, a landowner who has previously

permitted a neighbor to use his or her land is entitled to withdraw that permission without

forfeiting his or her property rights. See Hilley, 972 A.2d at 652 (where use of easement was

permissive until such time as landowner withdrew permission, user who filed suit immediately

after revocation of permission could not establish claim to a prescriptive easement).

Accordingly, JR & Sons was free to end Butterfly’s use of its lot, and its previous cooperation

does not work a forfeiture of its rights.

       In sum, we are satisfied that, in his second decision, the trial justice gave an accurate

recitation of the law on hostility and drew a reasonable inference that Butterfly’s delivery trucks’

use of JR & Sons’s lot was permissive. Since Butterfly cannot succeed on its claim for a

14
   We note that there was testimony from both Mr. Sposato and Mrs. Martin that their
relationship, at least prior to May 2010, was friendly and neighborly. On appeal, we are required
to afford “substantial deference” to a trial justice’s decision to credit a witness’s testimony.
Pelletier v. Laureanno, 46 A.3d 28, 39 (R.I. 2012).
                                               - 18 -
prescriptive easement without satisfying all of the requisite elements, our agreement with the

trial justice’s finding that Butterfly failed to meet its burden of proof on the element of hostility

suffices for us to uphold his decision. We therefore need not address Butterfly’s argument that

the trial justice erroneously concluded that the annual Christmas tree sales interrupted the

delivery trucks’ continuous use of JR & Sons’s lot.

                                                     IV

                                              Conclusion

        For the foregoing reasons, we affirm the judgment of the Superior Court. The papers in

this case may be remanded to that tribunal.



        Goldberg, J., with whom Suttell, C.J., joins, dissenting. Because I believe that there

was sufficient evidence to show the plaintiffs’ hostile use of the disputed area, and that no

evidence was presented to support the trial justice’s finding of implied permission to defeat such

hostile use in this case, I respectfully dissent.

        The discord in this case finds its genesis in the fact that on August 8, 1985, Albert

Romanella conveyed a large commercial building that encroaches upon—and which has a

loading dock that cannot be accessed without traversing upon—JR & Sons’s property. To gain

access to this loading dock, JR & Sons granted plaintiffs an express easement, recorded in the

Town of Westerly’s land evidence records, which “permit[s] ingress and egress to and from the

loading dock at the southwest corner of [Butterfly Realty’s] building[.]”           This easement,

however, expressly prohibits deliveries over the delineated route by “semi-trailers.”

        The testimony and evidence presented at trial established that, beginning in 1985 until the

time of trial, Butterfly Realty’s building was leased to a succession of businesses, all of which



                                                    - 19 -
used the loading dock for deliveries to their respective businesses.          Each tenant received

deliveries at the loading dock at varying frequencies from delivery trucks, including tractor-

trailer trucks.   In order to access the loading dock, these delivery trucks—including semi-

trailers—would drive over JR & Sons’s lot, outside the boundaries of the express easement.

Thus, the evidence presented at trial clearly establishes that plaintiffs’ use of lot No. 330 to reach

the loading dock was adverse to the restrictions set forth in the recorded easement—and any

understanding between the parties—ab initio.

        Nevertheless, the trial justice concluded that the use of lot No. 330 to access the loading

dock was actual, open, and notorious, but not sufficiently hostile to establish an easement by

prescription. The trial justice explained that “Romanella’s assent, accompanied with various

restrictions, controlled the use of the area. * * * Being neighborly while actively controlling the

use of one’s property should not be construed as establishment of the hostility necessary to suffer

the loss of a property right.” He concluded that “Butterfly’s use of the trucking routes, although

exceeding the scope of the express easement, was not ‘hostile’ because Romanella implicitly

permitted the use to continue.” I am of the opinion that, in so finding, the trial justice clearly

erred in that he overlooked and misconceived evidence on the controlling issues and law in this

case. There simply is no evidence to support the finding that defendant employed “various

restrictions” or “controlled the use of the area.”

        In Butterfly Realty v. James Romanella & Sons, Inc., 45 A.3d 584 (R.I. 2012)

(hereinafter, Butterfly I), this Court explained that, “to show sufficient hostility, a claimant must,

by clear and convincing evidence, demonstrate objective trespassory acts that are adverse to the

rights of the true owner, not acts that are inconsistent to the use of the true owner.” Id. at 590

(citing Reitsma v. Pascoag Reservoir & Dam, LLC, 774 A.2d 826, 832 (R.I. 2001)). However,




                                              - 20 -
“[i]t is sufficient if one goes upon the land openly and uses it adversely to the true owner, the

owner being chargeable with knowledge of what is done openly on his land.” Id. at 589 (quoting

Reitsma, 774 A.2d at 831). “Thus, to constitute hostile use, the claimant need only show a use

‘inconsistent with the right of the owner, without permission asked or given, * * * such as would

entitle the owner to a cause of action against the intruder [for trespass].’”           Drescher v.

Johannessen, 45 A.3d 1218, 1228 (R.I. 2012) (quoting Tavares v. Beck, 814 A.2d 346, 351 (R.I.

2003)).

          This Court has previously been confronted with whether a landowner’s use was

permissive, thus defeating the element of hostility and a plaintiff’s claim for possession. In

Altieri v. Dolan, 423 A.2d 482, 484 (R.I. 1980)—on which the trial justice relied—this Court

held that a prescriptive easement was not established where a shared driveway between

neighbors “was used on a friendly and neighborly basis and not adversely.” In reaching this

conclusion, however, this Court specified that the plaintiffs failed to make the requisite showing

of “some affirmative act constituting notice to [defendant] that their occupancy was hostile to the

owner and they were claiming the property as their own.” Id. (quoting Picerne v. Sylvestre, 122

R.I. 85, 92, 404 A.2d 476, 480 (1979)).

          Again, in Burke-Tarr Co. v. Ferland Corp., 724 A.2d 1014, 1019 (R.I. 1999), this Court

determined that “an inference of permissive use, which would defeat the element of hostile use”

could not be drawn solely from a landowner’s knowledge that a water line was being installed

under a right of way that the landowner had leased to the defendant. In Burke-Tarr, not only did

the landowner fail to object to the installation of the water line or to its continued use, but the

landowner also testified that she did not know that the installed water line significantly exceeded

the area specified in the leased right of way. Id. at 1020. As a result, this Court held that, in the




                                             - 21 -
absence of an objection, a landowner’s mere awareness of how his or her land is used is

insufficient to establish express or implied permission which could negate hostile use. Id. at

1019-20.

       Finally, in Reitsma, 774 A.2d at 832, this Court further explained that “[w]hen

confronted with * * * an open, unsolicited, and long-continued use of the property, the true

owner must affirmatively communicate either objection or permission to stop the statutory

prescriptive period from running.” (emphasis in original.) This Court specified that “[m]ere

acquiescence or silence, however, in the face of uses that are inconsistent with the true owner’s

property rights, does not constitute permission.” Id. In Reitsma, this Court concluded that “no

inference of permission from [the defendant] could be drawn from the mere fact that [the

defendant] allowed the use to continue.” Id.

       In this case, the trial justice noted that he was “not convinced that the owners or the

employees of the parties knew the exact location of the easement at the time that Butterfly was

using the disputed area.” Indeed, neither Charles Sposato nor James Romanella, the current

owners of JR & Sons, was aware that there even was an easement. Nonetheless, the evidence

presented at trial established that tractor-trailer trucks regularly made deliveries to the loading

dock via the brown route and the green route, in violation of the terms of the express easement

for over twenty years, which is well in excess of the statutory period necessary to establish a

prescriptive easement. The evidence also established that the current owners of JR & Sons had

no idea that there was an express easement, along with its prohibition against semi-trailer trucks

that was filed in the land evidence records. The record also shows that no express permission

was given to plaintiffs to traverse lot No. 330 using the green and brown routes, nor was there

ever an objection raised by defendant to this use.




                                             - 22 -
        Charles Sposato and James Romanella testified that each owned twenty-five percent of

JR & Sons when Albert Romanella conveyed the property—and JR & Sons granted the

easement—to Butterfly Realty in 1985. Their testimony indicates that they were uninformed and

ignorant of the details of this transaction. Sposato testified that since that time, it was always his

belief that Butterfly Realty should pay JR & Sons for its use of lot No. 330, and claims to have

expressed this belief to Albert Romanella. Sposato did not disclose how Albert Romanella

responded to this request.     Sposato testified that after Albert Romanella died in 2004, he

considered asking for rental payments, but never approached anyone from Butterfly Realty.

Nonetheless, he testified at trial that, consistently for the past twenty-five years, he unequivocally

believed that Butterfly Realty should be paying rent to JR & Sons for its use of lot No. 330:

               “Q: But your testimony is that for twenty-five years you thought
                  they should have been paying rent; correct?
               “A: No question about it.
               “Q: And your attitude about it never changed in that twenty-five
                  years? You always thought they should be paying money?
               “A: No question about it.
               “Q: It took you until 2010 to ask for it?
               “A: Because I had leverage then.
               “Q: You had leverage six years ago when Al Romanella died;
                  didn’t you?
               “A: We discussed it. We didn’t do it.”

This testimony is not that of a friendly neighbor.

        In his deposition, Sposato claimed that an oral agreement existed between Albert

Romanella and Mat Serra—who owned the liquor store on Butterfly Realty’s property prior to

1985—that allowed trucks to drive onto lot No. 330 to access the loading dock. However, when

asked when this purported oral agreement was reached between Romanella and Serra, Sposato

testified:




                                              - 23 -
               “I never had a date. I never knew of a date that it was reached. It
               was just something that [James] and I had gotten from Albert that
               he had given to them people. * * * We never had any [sic] we
               didn’t know where the lines were. We knew that they were on our
               property. * * * [B]ut I, I never knew Albert talked to them. He
               never told anybody. So, if he talked to them, I don’t know when
               that was.” (Emphasis added.)

This comment led to the following exchange:

               “Q: So, from 1985 through the time that you called [the
                  surveyor]—
               “A: Yes.
               “Q: —to locate the property line—
               “A: Yup, I didn’t know.
               “Q: —you were operating under an understanding that there was
                  some kind of oral agreement?
               “A: That’s how we addressed it. We never bothered anybody.”
                  (Emphasis added.)

At trial, however, when asked whether he knew of any agreement in place that permitted

delivery trucks to traverse lot No. 330 to access the loading dock, Sposato flatly replied, “Not at

all.”   Although the majority claims that this nebulous testimony establishes that Sposato

“apparently believed” that Albert Romanella had already granted plaintiffs permission to traverse

lot No. 330, our case law is clear that a landowner’s subjective belief is insufficient to establish

permissive use. See Reitsma, 774 A.2d at 832. And, in this case, Sposato was wrong. Our law

therefore requires, when confronted with Butterfly Realty’s “open, unsolicited, and long-

continued use of the property,” that JR & Sons “affirmatively communicate either objection or

permission to stop the statutory prescriptive period from running.” Id.

        The evidence, however, clearly establishes that defendant did neither. According to

Shawn Martin, neither Albert Romanella nor Sposato ever voiced an objection to the delivery

trucks’ use of lot No. 330 to access the loading dock. Indeed, there was no communication

between these neighbors on this issue for twenty-five years. Martin’s wife, Rita Martin—who


                                             - 24 -
managed the liquor store from the time it opened in 1985 until its closing in 1989—testified that

although she personally observed tractor-trailer trucks making deliveries to the loading dock, she

had never received any written or oral communications from anyone affiliated with JR & Sons

about the delivery trucks’ use of lot No. 330 to access the loading dock. Paul Williams, who

worked in the auto parts store for fifteen years—from 1991 until 2006—explained that the auto

parts store received weekly deliveries at the loading dock from semi-trailer trucks that were

approximately fifty feet in length. Williams also testified that he never had a conversation with

anyone affiliated with JR & Sons concerning the trucks’ deliveries to the loading dock. Finally,

Craig Jackson, the owner of Auto Audio, testified that he also observed semi-trailer trucks at the

loading dock on a weekly basis to make deliveries to the auto parts store. He maintained,

however, that the only time he could recall deliveries being interrupted was when defendant

installed the concrete pylons in 2010.

       In addition, Sposato testified that, for more than twenty-five years, he personally

observed tractor-trailer trucks traverse lot No. 330 to reach the loading dock on a weekly basis.

He also testified that he never voiced an objection to plaintiffs’ use of lot No. 330, nor did he

make any attempt to stop delivery trucks from using the lot to reach the loading dock. Curiously,

in the event his building was damaged by a delivery truck, Sposato claimed he would speak

directly with the driver, and not with Butterfly Realty or its tenants. Thus, the record in this case

clearly shows that defendant never raised an objection to plaintiffs’ use of the disputed area as is

required by our law. See Reitsma, 774 A.2d at 832.

       Moreover, the evidence in this case also does not support the majority’s conclusion that

JR & Sons impliedly gave plaintiffs permission to use the disputed area, or that defendant’s

actions rose above the “inactive status of quiescence or unqualified submission” that is




                                             - 25 -
insufficient to support an inference of permission. Reitsma, 774 A.2d at 832-33 (“Mere failure

to protest is not permission but acquiescence. * * * Acquiescence is the inactive status of

quiescence or unqualified submission to the hostile claim of another, and is not to be confused

with permission, which denotes a grant of permission in fact or a license.”) (quoting Garrett v.

Gray, 266 A.2d 21, 27-28 (Md. 1970) (internal quotation marks and emphasis omitted)). In

support of its holding that Charles Sposato and James Romanella “took affirmative steps

consistent with an inference of permission,” the majority first points to the fact that Sposato

would move his car for delivery trucks traversing lot No. 330. However, the record reflects that

this action was not necessarily taken for the purpose of allowing access to plaintiffs’ loading

dock. Rather, Sposato indicated that, although he would move his car so that traffic on lot No.

330 would not become congested, he could not identify whether the truck accessing the lot at the

time was making a delivery to the Butterfly Realty building or to one of his own tenants. In fact,

Sposato stated that vehicles—including tractor trailers—made deliveries to his own ten tenants

on lot No. 330 by following the brown route. Likewise, when asked on cross-examination about

the damage to his property—which he claimed was caused by deliveries made by tractor-trailer

trucks to the Butterfly Realty building—Sposato admitted that vehicles making deliveries to his

own tenants could have been responsible for the damage:

               “Q: I believe your testimony was to the effect that trailer trucks
                  making deliveries to the [Butterfly Building] caused the
                  concrete apron to break up; is that correct?
               “A: We believe the trucks going through there caused the concrete
                  ramp to break as you can see. We believe the trucks did that.”
               “Q: Well, which trucks?
               “A: All I said was trucks did that. I don’t know which truck did it.
               “Q: Well, was it trucks servicing [Butterfly Realty] or was it trucks
                  servicing your tenants that caused that?
               “A: I couldn’t tell you. I really don’t know which truck. I said
                  trucks did that not the cars.
               “Q: But—so it could have been your own tenants’ deliveries that



                                            - 26 -
                  caused that problem?
               “A: Yes.
               “Q: And you also testified, did you not, that trucks had hit your
                  building?
               “A: Yes.
                  “* * *
               “Q: Was that—could that also have been any truck that did so?
               “A: Could that also have been any truck? Of course.”

       The majority also points to conversations that James Romanella purportedly had to

support its holding that defendant “took affirmative steps consistent with an inference of

permission.”    I believe, however, that the majority’s reliance on these conversations is

misplaced, and similarly overlooks and misconstrues the material evidence presented in this case.

For instance, the majority recounts that James testified in his deposition that, after instances in

which his building was damaged by a delivery truck, he had two separate conversations with

Paul Martin—first in 2001 and again in 2004—in which he claims that Martin apologized and

promised “that he would make sure it didn’t happen again.” However, Paul Martin’s testimony

at trial reveals that, from 1985 to 2003, he had no involvement in Butterfly Realty. In fact,

Martin’s testimony reveals that he only acquired an interest in—and became involved in—

Butterfly Realty in 2010.     Furthermore, events that occurred in 2001—sixteen years after

Butterfly Realty acquired the property—and in 2004—nineteen years later—are well beyond the

statutory time period necessary to establish prescriptive use, and therefore have no bearing on

whether the use was permissive. See G.L. 1956 § 34-7-1.

       Nonetheless, the majority points to yet another purported conversation that James

Romanella recounted at trial, in which he claims to have received a call from one of Butterfly

Realty’s tenants regarding whether delivery trucks could navigate lot No. 330 with the Christmas

tree sales in place. This conversation occurred sometime during a twenty-year period:

               “Q: Now, at any time did you ever have any conversations with
                  anyone affiliated from Auto Zone regarding the Christmas tree


                                            - 27 -
                       operation that you just described?
                    “A: Yes.
                    “Q: When did this occur?
                    “A: I’m not sure what year but obviously it was prior to 2005.
                       * * * [I]t would [have been] between 1985 and 2005.
                    “Q: Okay. Do you know if it was in the 1990s, in the 2000s?
                    “A: I’m not sure.”

Despite his inability to recall at what point in the twenty-year span this brief conversation

occurred, Romanella detailed how he told the manager from Auto Zone “that it was my parking

lot and that stand had been there year after year and it would continue as long as my tenant

wanted to do it.”        In addition to relying on this nebulous testimony, the majority fails to

recognize that this testimony at trial stands in stark contrast to James Romanella’s deposition

testimony—which was introduced into evidence at trial—in which he declared that, aside from

the two aforementioned conversations with Paul Martin, he never had any other conversations

with Martin or any affiliates, tenants, or co-owners of Butterfly Realty—including Auto Zone

and Auto Audio—until the concrete pylons were installed. Thus, the record does not support the

trial   justice’s     conclusion—and    the   majority’s   affirmation—that   defendant’s   “assent,

accompanied with various restrictions, controlled the use of the area.”

         Finally, the majority concludes that Sposato’s neighborly ways are what led him to never

address anyone affiliated with Butterfly Realty or its tenants to voice an objection or stop the

encroachment. Although the majority claims that Sposato “consciously refrained” from asking

plaintiffs for compensation, the evidence presented at trial once again tells a different story.

Sposato testified that it was always his belief that plaintiffs should pay for its use of JR & Sons’s

property, but that he never asked for rent from Butterfly Realty until approximately six months

before trial, when he telephoned Paul Martin and demanded that Butterfly Realty pay $900 per

month for its tenants’ use of lot No. 330:




                                               - 28 -
              “Q: And your testimony here today is that you were voicing
                 objections about Butterfly Realty and their tenants using your
                 property to make deliveries and parking their cars twenty-five
                 years ago?
              “A: Did I? Are you asking me did I say that?
              “Q: Yes.
              “A: Yes, I did.
              “Q: Okay. But the first time you ever addressed this issue with
                 Butterfly was approximately six months ago; correct?
              “A: That’s what was prompted by what I told you because we
                 thought they were using our property to park on, using our
                 property to turn around on, coming up to the—and I said to my
                 partner [James], and we both discussed it, if they are going to
                 use that property they should pay us a rental and that brought
                 my call to Paul Martin which I did.”

       In his deposition testimony, Sposato testified that, prior to this demand for rent money, he

was unaware that there was an express easement from JR & Sons to Butterfly Realty, and was

surprised to learn of the existence of the easement and of its terms. However, as soon as he

learned about it, he made a hefty demand for $900 per month. When Butterfly Realty refused,

JR & Sons installed concrete pylons along the express easement, making it impossible for any

delivery vehicle to access the loading dock. When asked at trial why he installed the pylons,

Sposato’s response was about money: “I was trying to get together with Paul Martin and come

to some kind of agreement for them using all of our property all the time, that’s why I installed

them so I’d obstruct the flow.” This testimony mirrored Sposato’s deposition testimony, in

which he declared why he had the surveyor place an outline along the easement boundary:

“Because we wanted compensation for using our property.”

       These uncontroverted facts chronicle that Sposato—as an owner of JR & Sons—was not

trying to be neighborly; rather, he always wanted to be compensated for the use of lot No. 330.

Nonetheless, he was ignorant of the dimensions of his own land and did nothing. The plaintiffs




                                            - 29 -
used the area in a manner adverse to his ownership rights for over twenty-five years. 1 Our case

law is clear that JR & Sons’s failure to effectively communicate permission or objection to stop

the prescriptive clock from ticking is fatal to a finding of permissive use. See Reitsma, 774 A.2d

at 832 (“When confronted with * * * an open, unsolicited, and long-continued use of the

property, the true owner must affirmatively communicate either objection or permission to stop

the statutory prescriptive period from running.”); see also Restatement (Third) Servitudes § 2.17

cmt. c. at 265-66 (2000) (as acknowledged in the majority’s opinion, “[l]andowners are required

either to formalize permissive arrangements, or to prevent use by others to avoid the risk that

rights will be established by prescription”). 2 The evidence in this case clearly shows that

defendant did neither. Thus, absent permission or objection to plaintiffs’ use, our case law is

equally clear that defendant’s mere awareness that tractor-trailer trucks traversed lot No. 330 to

access the loading dock is insufficient to establish implied permission to negate plaintiffs’ hostile


1
 Curiously, although Sposato testified that he personally constructed the building that houses his
office on lot No. 330, he claims to have never noticed the express easement on any engineering
drawing used in this construction.
2
  The majority cites § 2.17 of the Restatement (Third) Servitudes (2000) for the assertion that a
recognized danger of prescriptive easements is their tendency to discourage “neighborly conduct
and accommodation.” However, I believe that this language must be read in full context:

                       “Prescription has both positive and negative effects. It
               encourages owners to prevent unauthorized users from developing
               reliance interests in continued use of their land, and it protects the
               reliance interests of those whose uses have continued without
               interruption for the prescriptive period. On the negative side, it
               discourages neighborly conduct and accommodation. Landowners
               are required either to formalize permissive arrangements, or to
               prevent use by others to avoid the risk that rights will be
               established by prescription. Prescription tends to increase the costs
               of land ownership by creating a need for periodic monitoring to
               detect adverse uses. On the positive side, prescription increases
               the security of arrangements based on long-continued uses and
               tends to increase the value of land served by the use.” Id. at 265-
               66 (emphases added).

                                             - 30 -
use. See Burke-Tarr, 724 A.2d at 1020 (landowner’s testimony that she was unaware that the

installed water line significantly exceeded the area specified in the leased right of way, coupled

with her failure to object to the installation of a water line or to its continued use, was

insufficient to show permissive use). The record in this case is clear that JR & Sons did nothing

to stop plaintiffs’ adverse use until it was too late.

        Moreover, I do not believe that this case presents the Court with an expansion of an

express easement as the majority contends. It is undisputed that an express easement existed,

permitting plaintiffs to access the loading dock from lot No. 330. However, it is also undisputed

that the actual routes used by the delivery trucks—the green route and the brown route—did not

follow, and occurred well outside of, the boundaries of the express easement, and operated in

direct contravention of its specific prohibition against semi-trailers. I would therefore contrast

this case from this Court’s holding in Hilley v. Lawrence, 972 A.2d 643 (R.I. 2009), in which

this Court stated that “[w]hen permission is granted for a particular use, a later use of the same

kind cannot be characterized as adverse.”           Id. at 652 (citing Stone v. Green Hill Civic

Association, Inc., 786 A.2d 387, 390 (R.I. 2001) (emphasis added)). As a threshold matter, the

use of lot No. 330 by tractor-trailer trucks was without permission, in violation of the recorded

easement, and was adverse to the landowner. See Drescher, 45 A.3d at 1228 (“[T]o constitute

hostile use, the claimant need only show a use ‘inconsistent with the right of the owner, without

permission asked or given, * * * such as would entitle the owner to a cause of action against the

intruder [for trespass].’”) (quoting Tavares, 814 A.2d at 351). Moreover, despite the recorded

easement’s express prohibition against semi-trailers, evidence presented at trial clearly

established that these types of trucks frequented the loading dock for decades without objection

by defendant. See Reitsma, 774 A.2d at 832 (“Mere acquiescence or silence * * * in the face of




                                               - 31 -
uses that are inconsistent with the true owner’s property rights, does not constitute permission.”).

Moreover, I discern no evidentiary support for the trial justice’s conclusion—and the majority’s

affirmation—that although the green and brown routes were used in full view of defendant, it

“was done so with [its] permission.” See id. (“When confronted with * * * an open, unsolicited,

and long-continued use of the property, the true owner must affirmatively communicate either

objection or permission to stop the statutory prescriptive period from running.”). As such, I

believe the plaintiffs have met their burden of showing that their use of lot No. 330 was hostile.

       Accordingly, I am of the opinion that the trial justice erred in finding that there was

implied permission for semi-trailer trucks to access the loading dock by traversing over lot No.

330 outside of the perimeters of the express easement. I am further unpersuaded that defendant’s

mere knowledge that trucks were traversing the lot created an implied permission sufficient to

defeat plaintiffs’ hostile use. See Burke-Tarr, 724 A.2d at 1019 (a landowner’s knowledge of

how his or her land is used, without a grant of permission or objection, is insufficient to establish

express or implied permission).

       Finally, although I acknowledge the majority’s declared intention to charter “a consistent

path by showing solicitude for the rights of record owners,” I believe it should do so on the basis

of the evidence in the record. Simply put, this case centers on a record wholly barren of

evidence to support the majority’s conclusion.

                                         Continuous Use

       Because I would hold that Butterfly Realty’s use of the claimed area was hostile, it is also

necessary to address the parties’ arguments concerning continuous use before determining

whether plaintiffs were in fact entitled to a prescriptive easement. See Butterfly I, 45 A.3d at

588 (“One who claims an easement by prescription bears the burden of establishing ‘actual,




                                             - 32 -
open, notorious, hostile, and continuous use under a claim of right for at least ten years.’”)

(quoting Hilley, 972 A.2d at 651-52). In his decision, the trial justice determined that Butterfly

Realty had “failed to establish continued use for a period of ten years,” finding that the yearly

Christmas tree sales had interrupted the continuous use of the disputed area.            On appeal,

plaintiffs argue that the trial justice erred in finding that the Christmas tree sales interrupted

plaintiffs’ continuous use of the area. I agree.

       According to Rita Martin, for one month each year, during the Christmas season, tenants

of JR & Sons would sell Christmas trees alongside the northern side of the laundromat. She

described the area occupied by the trees as extending a “little beyond” the painted parking spaces

located on the northern side of the laundromat. At trial, Mrs. Martin sketched the approximate

area of the tree sales on a scaled map; according to her drawing, the trees did not overlap any

part of the brown route. She explained, however, that the actual dimensions of the area occupied

by the trees would vary slightly from one year to another. Nonetheless, she recounted that the

tree sales never hindered deliveries to the loading dock.

       Paul Williams also testified about his observations of the annual Christmas tree sales. He

stated that the tree sales took place every Christmas season that he worked at the auto parts store,

and ran from the end of November through December. Like Mrs. Martin, Williams sketched the

location of the tree sales on a scaled map; this drawing depicted the trees encroaching upon the

brown route, but not blocking the route entirely. Williams stated that he had personally observed

trucks making deliveries while the trees were in place, but the trucks would have to “move[] over

a little” to avoid the trees. According to Williams, the space in between the trees and the

Butterfly Realty building was “a little tight,” but that a semi-trailer truck could access the loading

dock. In fact, Williams insisted that the trees did not prevent the delivery trucks from entering




                                              - 33 -
from East Avenue and reaching the loading dock.

       As did Mrs. Martin and Williams, Craig Jackson, the owner of Auto Audio, also drew the

area occupied by the Christmas trees on a scaled diagram. Jackson’s sketch indicated that the

trees did not encroach upon any portion of the brown route, and, depicted the “average” size of

the Christmas tree display, because it varied from year to year. Jackson testified that, despite the

Christmas tree display, the weekly deliveries to his store were never interrupted until defendant

installed the pylons along the southwestern boundary of the easement.

        Sposato testified that the Christmas tree sales took place on the northern side of the

laundromat almost every year from 1985 to 2006, and lasted for approximately one month from

Thanksgiving through Christmas Eve.         When presented with Williams’s drawing, Sposato

indicated that the drawing was a “good illustration” of the area occupied by the Christmas trees.

When asked about the trucks’ ability to use the brown route while the trees were in place,

Sposato stated, “[t]here’s no room for anybody to really get through there in my opinion.” He

clarified, however, that he was “not saying that [the delivery trucks] didn’t at times go through

there because obviously they did, but not conveniently.” Significantly, there was no testimony

from James Romanella that the annual Christmas tree sales blocked access to the loading dock or

that trucks were unable to pass over the brown route.

       Our case law has recognized that one of the methods by which a record owner can

interrupt a claimant’s continuous use of a disputed area is by “physical ouster of the claimant or

a ‘substantial interruption’ of the claimant’s possession by the record owner.” Carnevale v.

Dupee, 783 A.2d 404, 409-10 (R.I. 2001) (quoting LaFreniere v. Sprague, 108 R.I. 43, 52, 271

A.2d 819, 824 (1970) (emphasis added)). This Court previously has found that a landowner’s

casual or passive attempts to interrupt a claimant’s continuous use were not sufficiently




                                             - 34 -
substantial so as to amount to an interruption of continuous use. See, e.g., Carnevale, 783 A.2d

at 411 (the mere act of making a claimant aware of surveyed boundaries is insufficient to

substantially interrupt the claimant’s physical possession of the property); Jerry Brown Farm

Association, Inc. v. Kenyon, 119 R.I. 43, 48, 375 A.2d 964, 966-67 (1977) (the placement of “a

saw horse with a sign reading ‘Road Closed’ at the entrance to the road once a year,” when “the

saw horse only covered a small portion of the road” and “[v]ehicles desiring access would

simply go around the sign,” did not constitute substantial interruption); LaFreniere, 108 R.I. at

52, 271 A.2d at 824 (holding that performing a survey and giving notice to claimants of the

proper boundary line did not constitute a sufficiently substantial interruption to halt the

continuous use of the area, when claimants removed surveyor’s stakes and continued to use the

area in a similar manner); see also 25 Am. Jur. 2d Easements and Licenses § 62 at 559 (2004)

(“Ineffective interruptions, such as the erection of barricades and gates that are ignored or

destroyed, will not prevent a use from ripening into [a prescriptive] easement.”). Accordingly, a

landowner’s actions to break a claimant’s continuous use of a disputed area “must be such as to

actually interfere with and interrupt substantially the claimant’s use of the land.” 3 LaFreniere,

108 R.I. at 53, 271 A.2d at 824.

       In Butterfly I, 45 A.3d at 591, this Court determined that the factual findings of the trial

justice were inconsistent with his conclusion that the annual Christmas tree sales interrupted

Butterfly Realty’s continuous use of the prescriptive area, and remanded the case with

instructions to further examine the evidence and decide this issue. In the trial justice’s second



3
  It is important to note that continuous and uninterrupted use by a claimant does not require
constant use of the disputed area; “[i]t is necessary that it be continuous only in the sense that the
claimant exercised a claim of right without interference at such times as it was reasonable to
make a proper use of the land.” LaFreniere v. Sprague, 108 R.I. 43, 53, 271 A.2d 819, 824
(1970).

                                              - 35 -
decision, he once again determined that the plaintiffs’ “use of the green and brown routes was

not continuous for the statutory period of ten years,” based on similar findings that, because of

the Christmas tree sales, tractor trailers “sometimes had more difficulty” accessing the loading

dock area, although “[s]maller trucks and consumer vehicles were still usually able to make it

through this narrowed passage.” However, there was no testimony or evidence presented at trial

that the annual Christmas tree sales blocked access to the loading dock by delivery trucks

sufficient to constitute an ouster. At best, the evidence suggested that the placement of the tree

display merely made it inconvenient for trucks to access the loading dock. Inconvenience that

does not rise to the level of physical ouster or substantial interruption as required by our case law

is of no moment on the question of continuous use. Accordingly, it is my opinion that the trial

justice erred when he found that the presence of the annual Christmas tree sales interrupted

Butterfly Realty’s continuous use of the green route and the brown route.

       Lastly, the plaintiffs argue that its tenants’ use of the claimed prescriptive area may be

imputed to Butterfly Realty. However, after concluding that the plaintiffs failed to prove their

claim for a prescriptive easement, the trial justice did not address on remand whether the various

tenants’ use of lot No. 330 could be imputed to Butterfly Realty. Because the trial justice did not

reach the issue of imputed use, it is therefore unnecessary to address it.

                                            Conclusion

       Based on the foregoing, I am satisfied that the plaintiffs have established, by clear and

satisfactory evidence, that their use of lot No. 330 was “actual, open, notorious, hostile, and

continuous use under a claim of right for at least ten years.” Butterfly I, 45 A.3d at 588 (quoting

Hilley, 972 A.2d at 651-52).




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                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Butterfly Realty et al. v. James Romanella & Sons, Inc.

CASE NO:              No. 2013-15-Appeal.
                      (WC 10-406)

COURT:                Supreme Court

DATE OPINION FILED: July 1, 2014

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Gilbert V. Indeglia

SOURCE OF APPEAL:     Washington County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Jeffrey A. Lanphear

ATTORNEYS ON APPEAL:

                      For Plaintiffs: Mark E. Liberati, Esq.

                      For Defendant: Kelly M. Fracassa, Esq.
