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             DISTRICT OF COLUMBIA COURT OF APPEALS

                                  No. 17-CV-829

                           KEBREAB ZERE, APPELLANT,

                                         v.

                        DISTRICT OF COLUMBIA, APPELLEE.

                      Appeal from the Superior Court of the
                              District of Columbia
                                 (CAB-772-16)

                       (Hon. Brian F. Holeman, Trial Judge)

 (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
                                         2

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


      1
         A prescriptive easement is an interest in land owned by another, consisting
of the right to use or control the land for a specific limited purpose, that is
established by a claimant’s open, notorious, continuous, and adverse use for the
statutory period of fifteen years. Martin v. Bicknell, 99 A.3d 705, 711-712 (D.C.
2014). We clarified in Martin that, while the use of a prescriptive easement must
be adverse, unlike an adverse possession claim, a plaintiff need not show the
element of exclusivity to make out a claim of a prescriptive easement because
“servitudes are generally not exclusive.”           Id. at 711, 713-714 (quoting
RESTATEMENT (THIRD) OF PROP.: SERVITUDES § 2.17 cmt. g (AM. LAW. INT. 2000)).
      2
           Between 2004 and 2016, Mr. Zere filed twenty tax-sale foreclosure
actions.
                                           3

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.
                                           4

         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
                                         5

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.
                                          6

                                          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.




      3
         Mr. Zere also argues that the District should not have sold him the lots in a
tax-sale if the entire alley was burdened with the easement and therefore had no
value. Regardless of the validity of this claim, it does not affect the existence of
the easement. Furthermore, Mr. Zere was required to first raise this argument in a
counterclaim with the trial court, and he failed to do so.
                                         7

      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., 447 U.S. 242, 249 (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
                                         8

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
                                         9

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

their townhouses they have used the alley daily and have observed members of the

public use the alley in a multitude of fashions. Mr. Turner and Ms. Carter stated

that they have never asked for permission to use the alley, nor have they observed

anyone else asking for permission to use the alley, nor did they believe anyone had

the right to stop them from using the alley. Mr. Zere did not file a statement of

disputed material facts pursuant to Super. Ct. Civ. R. 12-I(k), and therefore, the

trial court was entitled to consider the District’s evidence as undisputed. See Jane

W., 863 A.2d at 826.
                                         10



      Mr. Zere contends that he raised material disputes of fact in his opposition to

the District’s motion for summary judgment. We disagree that Mr. Zere created

any material disputes within his opposition. Mr. Zere contends that the declarants

lacked credibility because he was not able to cross-examine the declarants.

However, Mr. Zere’s credibility challenge is misplaced because, at the summary

judgement stage, the trial court does not assess credibility, and Mr. Zere is not

entitled to cross-examine the affiants. Anderson v. Ford Motor Co., 682 A.2d 651,

654 (D.C. 1996); see Bortell v. Eli Lilly & Co., 406 F. Supp. 2d 1, 11 (D.D.C.

2005) (agreeing with the Seventh Circuit that Rule 56 governing summary

judgment does not have a cross examination requirement); see also Journal of

Commerce, Inc. v. U.S. Dep’t of Treasury, 1987 WL 4922 at *3 (D.D.C. Jun. 1,

1987) (holding that there is “no automatic entitlement to cross-examination” at the

summary judgement stage because that “would in essence deprive [] defendants of

their right to move for summary judgment on the basis of appropriate affidavits.”). 4




      4
         Mr. Zere also argues that the declarations were in violation of the Dead
Man’s Statute, D.C. Code § 14-302(a) (2012 Repl.), but this statute does not apply.
The Dead Man’s Statute is intended to protect a deceased party from being
fraudulently held liable in a legal action where the only evidence of liability is the
claimant’s own assertion that the deceased was obligated to him in some fashion.
See Gray v. Gray, 412 A.2d 1208, 1212 (D.C. 1980). This is not the case here.
                                         11

      Mr. Zere contends that the District did not establish adversity because there

is a dispute as to whether the public’s use of the alley was merely permissive. He

claims that none of the declarants showed they ever made a claim of right on the

lots, nor did they maintain the lots, or interfere with the use of the lots by the

owner. However, other than denials, Mr. Zere presents no evidence to place this

issue in dispute. See Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198-99

(D.C. 1991). Mr. Zere’s argument thus fails to refute the District’s prima facie

showing of adverse, open, and continuous public use of the alley. See Smith v.

Tippett, 569 A.2d 1186, 1190 (D.C. 1990) (“[P]ossession is adverse whenever

there is open and continuous use of another’s land for the statutory period, and this

presumption is effective to establish title in the absence of evidence to the

contrary.”).



      Mr. Zere also claims that there is not a public prescriptive easement because

the testimony of a DDOT representative at a public hearing on a bill to condemn

the lots demonstrates that the agency did not recognize, or maintain, the alley as a

public alley. Mr. Zere asserts that this notion is supported by the absence of any

public record of the easement, the introduction of a bill to condemn the lots and

transfer ownership to the District, and the District’s collection of taxes.

Additionally, Mr. Zere argues that it was a contradiction for the Council to hold an
                                        12

eminent domain hearing on the property at issue in 2015, when the District now

claims a prescriptive easement was created in 1995. None of these assertions,

however, defeat the creation of a public easement. The burden of establishing a

prescriptive easement does not require public knowledge or acknowledgment, but

only a demonstration of open, notorious, continuous and adverse use for the

statutory period. See Martin, 99 A.3d at 711. “[A] use is open and notorious if

knowledge of it is had by those who are or may be affected by it even though the

use is not a matter of common knowledge in the community.” RESTATEMENT

(FIRST)   OF   PROP. § 458 cmt. h (AM. LAW INST. 1944) (emphasis added). The

undisputed evidence shows that the property owners abutting the alley used the

alley and did not ask permission. Therefore, summary judgment was properly

granted in favor of the District on the issue of whether a prescriptive easement had

been established.



   B. Takings Claim



      Mr. Zere alternatively argues that, assuming a public easement existed, the

District should compensate him for the fair market value of the lots, under the

Takings Clause of the Fifth Amendment.         Mr. Zere did not raise this as a

compulsory counterclaim in his answer to the complaint, see Super. Ct. Civ. R. 13
                                           13

(a), but rather, first raised it in a motion to dismiss before the trial court. The trial

court, in its order denying his motion to dismiss, alerted Mr. Zere that this

argument was improperly presented in his motion.5 Mr. Zere, nevertheless, did not

raise this compulsory counterclaim. Therefore, he forfeited this claim.



                                            III.



      Accordingly, the judgment on appeal is affirmed.



                                                             So ordered.




      5
        In the order denying Mr. Zere’s motion, the trial court explained that such
a claim was not a valid ground for dismissal, nor was it properly presented in a
motion to dismiss.
