Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.

             DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 12-CV-1226


                   JAMES THOMAS MARTIN, et al., APPELLANTS,

                                        v.

                      NOEL L. BICKNELL, et al., APPELLEES.


            Appeal from the Superior Court of the District of Columbia
                                (CAB-0420-12)

                      (Hon. Gregory E. Jackson, Trial Judge)

(Argued October 22, 2013                           Decided September 18, 2014)

      Thomas G. Corcoran, Jr., for appellant, who was also on the brief.

      Valerie L. Hletko, with whom Alexander S. Leonhardt was on the brief, for
appellee.

      Before BECKWITH, EASTERLY, and MCLEESE, Associate Judges.

      EASTERLY, Associate Judge: Where the right to use real property is at issue,

it cannot be gainsaid: Clarity is best; ambiguity breeds discord. This case is about

the use of adjoining or shared—depending on one‟s view of the facts—driveways.

Neighbors James Thomas Martin and his spouse Antoinette Baarns, and Noel
                                          2

Bicknell and his spouse, Caitlin Mackenzie,1 have a dispute over use of the

driveway from which they gain access to their respective garages, a driveway that

bridges their common property line. The Martins sued and asserted that they have

an easement to use a portion of the Bicknells‟ side of the driveway. The court

determined that the Martins had failed to state a claim, either for an implied grant

of an easement or a prescriptive easement, and dismissed their complaint. We

review the trial court‟s order de novo2 and reverse. We publish this opinion in the

hope that a clearer explication of the requirements to claim an implied grant of an

easement or a prescriptive easement will help District residents to better

understand their own and their neighbors‟ property rights, and will perhaps even

encourage resolution of similar disputes out of court.




      1
         For ease of discussion we refer to the couples as the Martins and the
Bicknells.
      2
          See Grayson v. AT&T Corp., 15 A.3d 219, 228 (D.C. 2011) (en banc).
                                          3

                       I.    Facts and Procedural History3



      The Martins and the Bicknells own adjoining townhomes (on Square 1327

lot 52 and 53 respectively), built by the same developer in the 1930‟s, in the

Foxhall Village neighborhood in the District of Columbia. Behind their homes, a

twelve-foot-wide4 driveway connects their garages to an alleyway. The property

line dividing their lots falls down the center of the driveway.



      The Martins purchased their house on lot 52 in 1969. For more than thirty

years, without incident, they gained access to their garage via the common

driveway, and in so doing, drove over their property line with lot 53 (the Martins‟

neighbors similarly drove over the Martins‟ side of the driveway to gain garage

access).   In 2001, the then-owner of the neighboring house, Edward Ponzi,

converted his garage into a rental unit, so that it was no longer usable for parking,

but the Martins‟ use of the driveway continued unchanged. Later that year Mr.


      3
         In reviewing an order granting a Rule 12 (b)(6) motion “we accept the
allegations of the complaint as true, and construe all facts and inferences in favor
of the plaintiff.” Grayson, 15 A.3d at 228 (brackets and internal quotation marks
omitted). We look to the Amended Complaint filed by the Martins on February
22, 2012.
      4
        The driveway is wider for the first eight feet outside the garages and then
narrows to twelve feet for the remainder of the distance to the alley.
                                         4

Ponzi sold his property to the Bicknells. The Bicknells, who did not have a garage

for parking, informed the Martins that they intended to park their car on their side

of the driveway. The Martins insisted that when the Bicknells parked their car in

their driveway that they ensure that one front and back wheel of the vehicle were

parked on the dirt of their back yard, so that the parked car did not impede the

Martins‟ access to their garage. When the Bicknells did not park their car in this

manner, the Martins would ask them to move their car and the Bicknells complied.

This continued until January 2, 2012. On that day, the Bicknells‟ car was parked

so as to block the Martins from gaining access to their garage and the Bicknells

refused to move their vehicle.



      By this point the relationship between the neighbors had apparently soured

and little time was devoted to an out-of-court resolution. On January 18, 2012, the

Martins sued the Bicknells, alleging that the Martins had a legal right to use the

Bicknells‟ side of the driveway either through (1) an implied grant of an easement

made by the original developer and conveyed to the Martins when they purchased

the property “together with all easements appurtenant thereto” or, in the

alternative, (2) a prescriptive easement through the Martins‟ “open, visible,

notorious, continuous, exclusive and adverse” use of the driveway.
                                         5

      The Bicknells filed a motion to dismiss under Super. Ct. Civ. R. 12 (b)(6).

With respect to the Martins‟ claim of an implied grant of an easement, the

Bicknells argued that it was insufficient for the Martins to allege that an implied

easement was “reasonably necessary” to the full use and enjoyment of their

property, and that instead a showing of “strict necessity” is required. With respect

to the Martins‟ claim of a prescriptive easement, the Bicknells did not dispute the

Martins‟ recitation of the requisite elements, but argued that the Martins had failed

to allege supporting facts—specifically that they had “adversely or exclusively”

used the common driveway.



       The trial court granted the Bicknells‟ motion. The trial court ruled that a

showing of strict necessity was required for an implied grant of an easement. And

it agreed with the Bicknells that to support his prescriptive easement claim the

Martins had to allege that that his use of the common driveway was both adverse

and exclusive, but had failed to plead sufficient facts to make this showing. This

appeal followed.
                                         6

                       II.    Implied Grant of an Easement



      Before addressing the issues presented in this case, we briefly review the

various types of easements recognized in this jurisdiction. An easement is “[a]n

interest in land owned by another person, consisting in the right to use or control

the land. . . for a specific limited purpose.”5 An express easement, acknowledged

in a deed conveying ownership of property, is always preferred under the law. 6

Under certain circumstances, however, courts will recognize an implied easement.

As this court has recognized, “[g]enerally, there are two types of implied

easements, an implied grant, and an implied reservation.” Hefazi v. Stiglitz, 862

A.2d 901, 912 (D.C. 2004). In the case of an implied grant of an easement, a

property owner has subdivided and sold some or all of his property, but it is

implied that he also granted to the purchaser of one parcel, the dominant estate,7 an

easement over another parcel, the servient estate8—perhaps to allow access to a


      5
          Black‟s Law Dictionary 622 (10th ed. 2014).
      6
         See Restatement (Third) of Property: Servitudes § 2.11 cmt. b (2000) (“If
the transaction is properly handled, the nature of the servitude, the land benefited
and burdened by the servitude, [and] the nature of the interests of the parties . . .
will be expressly identified.”).
      7
         Defined as “[a]n estate that benefits from an easement.” Black‟s Law
Dictionary 667 (10th ed. 2014).
      8
          Defined as “[a]n estate burdened by an easement.” Id.
                                          7

necessary resource (e.g., water or a public road).9         In the case of implied

reservations of easement, the owner has subdivided but retained possession of the

dominant estate, impliedly reserving use of a portion of the servient estate for his

benefit. Because these two types of easements arise under different circumstances,

each implicating distinct equitable concerns, the elements required to establish the

existence of these easements are different. For implied grants of easements, the

owner of the dominant estate need only assert that the easement is reasonably

necessary to the use of his property. But for implied reservations of easements the

owner of the dominant estate must show that the implied easement is strictly

necessary.



      In this case, the trial court seemed to hold the Martins to the standard for an

implied reservation of an easement instead of an implied grant.          In its order

granting Mr. Bicknell‟s motion to dismiss, the trial court incorrectly stated that Mr.

Martin had to allege that his use of the easement is “apparent, continuous, and

strictly necessary for the enjoyment of the land retained,” citing DLY-Adams Place,

LLC v. Waste Mgmt. of Md., Inc., 2 A.3d 163, 167 (D.C. 2010) (analyzing a claim

      9
         Where an easement is implied through a “simultaneous conveyance” of
two parcels once held in unity, the easement is recognized as a “grant and [not an]
implied reservation.” See Leonard A. Jones, A Treatise on the Law of Easements §
139 (New York, Baker, Voorhis & Company 1898).
                                         8

of an implied reservation of an easement). Accordingly, we conclude that the trial

court erred in dismissing the Martins‟ claim that they had an implied grant of an

easement.



      The Martins argue that the question of how to prove an implied grant of an

easement “is a case of first impression in the District of Columbia.” While both

parties have failed to cite to them, we have identified a number of decisions on this

subject, which, while old, are still binding precedent. See M.A.P. v. Ryan, 285

A.2d 310, 312 (D.C. 1971). Since the early twentieth century, courts in the District

of Columbia have held that that in order for an easement to be transferred through

an implied grant, the dominant and servient estates must have at one time been

held in unity of title, that unity must have been severed, and the implied easement

created at severance must be apparent, continuous, and reasonably necessary to the

enjoyment of the property. See Scaggs v. Gallagher, 45 App. D.C. 450, 453 (D.C.

Cir. 1916) (upholding an implied easement where the easement was “reasonably

necessary to the enjoyment of the parcel conveyed”); Robinson v. Hillman, 36

App. D.C. 241, 248 (D.C. Cir. 1911) (upholding an implied easement where the

“use was reasonably necessary to the enjoyment of [the] premises”); Wilson v.

Riggs, 27 App. D.C. 550, 554 (D.C. Cir. 1906) (noting that “[t]his court and the

supreme court of this District . . . have not limited such appurtenances to those
                                          9

which are absolutely necessary to the enjoyment of the property”); Frizzell v.

Murphy, 19 App. D.C. 440, 445-46 (D.C. Cir. 1902) (emphasis added)

(recognizing an implied grant of an easement where the easement was “reasonably

necessary to the enjoyment of the part granted”).          The reasonable necessity

standard makes sense in light of the rationale for recognizing implied grants of

easements: to give value to the consideration given by a purchaser for all apparent

and implied advantages attached to the property,10 while also balancing the burdens

such an easement may impose on the servient property.11



      Implied reservations of easements are different. Where the seller of the

servient estate is also the owner of the dominant estate, there is greater concern that

he will take advantage of the situation.        In order to sufficiently protect an

unsuspecting purchaser from unfair burden and surprise,12 we recognize implied

reservations of easements only in those situations where it is manifestly clear that

      10
           See Jones, supra note 9, at § 126 (“The privilege apparently annexed to
the estate granted must be of value to it, and the grantee must be presumed to have
taken it into consideration as an advantage to such estate and to have paid for it in
his purchase.” (citations omitted)).
      11
          See Restatement (Third) of Property: Servitudes § 2.11 cmt. f (explaining
that the rationales for recognizing implied grants of easements include “meeting
the reasonable expectations of land owners and purchasers, and arriving at results
that are fair to all parties,” as well as the “overall economic impact” on each party
of a decision to grant or deny an implied easement).
      12
           See id.
                                          10

the dominant property will retain an easement over the purchaser‟s land, i.e.,

situations where the easement is “strictly necessary”13 to the use and enjoyment of

the dominant estate. Douglass v. Lehman, 66 F.2d 790, 792 (D.C. Cir. 1933).



      In their brief on appeal, the Bicknells cite Douglass to support their

contention that the applicable standard is “strict necessity” for both an implied

reservation and an implied grant of an easement. But there was no implied grant of

an easement in Douglass. Thus the passing statement in Douglass that “an implied

reservation or grant of an easement can only be said to arise where at the time of

the deed or grant the existing servitude is . . . strictly necessary to the enjoyment of

the dominant estate,” id. at 792, is merely dicta in so far as it purports to set a

higher bar for the degree of necessity of an implied grant of an easement. Nor does

this statement in Douglass gain the force of binding precedent by its repetition—

again as dicta—in Wood v. Neuman, 979 A.2d 64 (D.C. 2009). In Wood, this court



      13
            The case law discussing “strict necessity” has confusingly defined
“necessary” as “meaning that there could be no other reasonable mode of enjoying
the dominant tenement without [the] easement.” Douglass v. Lehman, 66 F.2d
790, 792 (D.C. Cir. 1933); see also Hefazi, 862 A.2d at 913 (citing Jones, supra
note 9, at § 156). Whatever it means, “strictly necessary” unquestionably demands
a higher degree of necessity than the “reasonably necessary” element for an
implied grant. In any event, because there is no claim of an implied reservation of
an easement in this case, we need not resolve any ambiguity in the elements for
proof of such an easement.
                                          11

upheld the trial court‟s ruling that the plaintiff had no implied easement where “the

„need‟ for an easement (in lieu of „making arrangements‟ with neighbors to

facilitate repair work) arose from the parties‟ „simple inability to get along as

neighbors in a productive and cooperative manner‟; and because there „appears to

be no current need‟ [for the neighbors to access each other‟s property].” 979 A.2d

at 71-72. In other words, this court upheld the trial court‟s ruling determining that

the plaintiffs did not enjoy an implied grant of an easement where the trial court

determined that the plaintiff had failed even to show reasonable necessity for such

an implied easement.



      Having clarified that a showing of reasonable necessity is all that must be

alleged to state a claim for an implied grant of an easement, we determine that the

trial court incorrectly granted the Bicknells‟ motion to dismiss on the ground that

the Martins had failed to plead strict necessity.



      The Bicknells additionally argue, however, that the Martins failed to allege

even reasonable necessity for an implied easement. We are not persuaded. The

Martins did not merely recite the words “reasonably necessary” in their complaint.

They also explained that their property and the property of the Bicknells (adjacent

lots 52 and 53) had been jointly developed with a common driveway; that both
                                         12

lots have garages that can accommodate a vehicle that is seven feet wide; that the

shared driveway between them is only twelve feet wide; that the lots had been

individually sold; and from the time of the original sale to present,14 the buyers of

these lots had “drive[n] a vehicle . . . over the portion of that common concrete

driveway” belonging to their neighbor in order to gain access to their garage from

the alley and vice versa. The Martins further asserted that they had insisted that

the Bicknells keep the driveway clear so that the Martins could access their garage

and that on the day that the Bicknells parked their vehicle in the driveway with “all

four of the wheels . . . parked on their side of th[e] common concrete driveway”

Mr. Martin was “prevented . . . from driving his vehicle from the alley into his

garage.” Taking these facts in the light most favorable to the Martins as we must,15

there is ample basis for an inference that the Martins‟ use of a portion of the

Bicknells‟ driveway is reasonably necessary for them to be able to travel between

the alleyway and the garage, and thus to the enjoyment of their property.

Moreover there is sufficient basis for an inference that this has been the case since

the time the adjacent properties were developed and divided (as noted above, an

implied easement may only be created at the time the dominant estate is severed

      14
         The Martins explained that the only interruption in this reciprocal practice
was the brief period of time when the predecessor owner to the Bicknells‟ property
converted their garage into a rental unit.
      15
           See supra note 3.
                                          13

from the servient estate). As designed, the driveway was originally twelve feet and

the garage was built to house a seven-foot vehicle; a seven-foot-wide vehicle

cannot stay on its “own” side of a twelve-foot-wide driveway.



      The Bicknells also argue that that the Martins‟ interest is purely aesthetic,

because they could access their garage if they were willing to remove the hedge

growing on their side of the driveway or alter their backyard patio.            These

assertions have no foundation in the Amended Complaint, and are based on

documents that are not part of the appellate record.16 It may be that the Martins

will not be able to prove their case, in particular, the requisite reasonable necessity

for an implied grant of an easement; but that is not the question before us. We

hold only that the Martins have fairly stated a claim that they enjoy an implied

grant of an easement, see Potomac Dev. Corp. v. District of Columbia, 28 A.3d

531, 543-45 (D.C. 2011) (adopting federal pleading standards that require plaintiffs

to make “more than an unadorned, the-defendant-unlawfully-harmed-me


      16
          While the Amended Complaint mentions the existence of a hedge, it does
not contain any allegation as to the impact of the hedge on the Martins‟ ability to
use the driveway. To support their assertion that the Martins merely refuse to
remove the hedge, the Bicknells cite in their brief on appeal to a declaration that
was filed by Mr. Martin after the notice of appeal had already been filed, and is
thus not part of the record before us.
                                          14

accusation” and to allege sufficient facts which if accepted as true would “state a

claim to relief that is plausible on its face” (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009))), and thus that the trial court erred in granting the Bicknells‟

motion to dismiss this claim.



                           III.   Prescriptive Easement



      We turn to the trial court‟s ruling that the Martins failed to state a claim for a

prescriptive easement. There was no dispute in the trial court as to the requisite

elements; both parties agreed that a prescriptive easement requires open, notorious,

exclusive, continuous, and adverse use for the statutory period of fifteen years.

The only issue was whether the Martins had pled sufficient facts to support their

allegation that their use of the Bicknells‟ side of the driveway was adverse and

exclusive. The trial court ruled that they had not. We disagree that the Martins

failed to plead sufficient facts to support adversity, and we clarify that proof of

exclusivity is not in fact needed in order to make out a claim for a prescriptive

easement.



      To acquire a prescriptive easement, use of the easement must be “adverse,”

that is, “not accompanied by any recognition, in express terms or by implication, of
                                         15

a right in the landowner to stop such use now or at some time in the future.”

Hefazi, 862 A.2d at 910-11 (internal quotation marks omitted). Permissive use

defeats a claim of adversity, but “[m]ere acquiescence is not permission.” Aleotti

v. Whitaker Bros. Bus. Machs., Inc., 427 A.2d 919, 922 (D.C. 1981). The trial

court determined that the Martins had pled facts demonstrating that their use of the

neighbor‟s side of the drive was permissive, not adverse, in the years prior to the

Bicknells‟ purchase of lot 53; the court further determined that there was

insufficient time for the Martins, who filed suit in January 2012, to establish

adverse use after the Bicknells purchased their property in 2001. Construing the

alleged facts in the light most favorable to the Martins as we must, we disagree that

the Martins acknowledged permissive use, or that the adverse use they alleged

cannot amount to the requisite fifteen years.



      The trial court‟s determination that the Martins‟ use of the shared driveway

was initially permissive appears to have been based on statements Mr. Martin

made in a declaration filed in support of the Martins‟ motion for a preliminary

injunction.17   But we do not view the statements Mr. Martin made in his


      17
          When considering a Rule 12 (b)(6) motion, trial courts are generally
limited to the four corners of the complaint and may only consider documents
“incorporated in the complaint”—i.e., either documents attached to the complaint
or documents which do not allege “facts extrinsic to the pleadings.” Washkoviak v.
                                                                     (continued…)
                                         16

declaration as defeating, at the pleading stage, the adversity element of the

Martins‟ claim to a prescriptive easement.




      In his declaration, Mr. Martin stated that at some unspecified point in time

after he purchased his house in 1969, he had had a conversation with a previous

owner of the Bicknells‟ property, Powell Bradfield, in which they “discussed the

fact that each of us had been granted the right to open his garage door over the side

of our common concrete driveway owned by the other, and that each of us had the

right to cross over our common property line, where it separated our common

concrete driveway along its length, with a vehicle in order to use both sides of our

common concrete driveway to drive that vehicle into and out of either of our

respective garages.” He further stated that for Mr. Bradfield‟s lifetime he and Mr.

Bradfield “cooperated in a neighborly way” to allow each other use of the common

driveway.




(…continued)
Student Loan Mktg. Ass’n, 900 A.2d 168, 178 (D.C. 2006). In this case the
Martins specifically requested in their opposition to the motion to dismiss that the
trial court consider the Martins‟ declaration as “incorporated into the Amended
Complaint,” and they have not opposed the trial court‟s consideration of this
declaration on appeal.
                                         17

      Mr. Martin‟s conversation with Mr. Bradfield does not definitively establish

permissive use; instead, it can fairly be understood as a discussion of each

neighbor‟s respective claim of right (derived from reciprocal implied grants of an

easement from the original developer) that were not at all contingent on the other‟s

permission. Such a claim of right, which necessarily rejects the “right in the

landowner to stop such use now or at some time in the future,” Hefazi, 862 A.2d at

910-11 (internal quotation marks omitted), provides sufficient factual support for

the element of adversity at the motion to dismiss stage. See Jones, supra note 9, at

§ 179 (“The use of [an easement] under a parole consent given by the owner of the

servient estate to use it as if it were legally conveyed, is [adverse] use. . . . The

distinction is, whether I grant you a right over or upon my property to use as your

own[,] or as my own—as an enjoyment and privilege belonging to you[,] or as

belonging to me.”).




      The trial court also ruled that the Martins failed to factually support the

“exclusivity element of [their] claim of prescriptive easement,” and that the

Martins‟ claim failed because they had not alleged that they had been “blocking

[the Bicknells‟] access to [the Bicknells‟] half of the driveway for a period of at
                                         18

least fifteen years.” We conclude that the exclusivity element required in an

adverse possession case18 does not pertain to a claim of a prescriptive easement.



      A review of our prescriptive easement cases reveals that courts in the

District of Columbia have sometimes included exclusivity in the list of elements of

a prescriptive easement, and sometimes not.19 And even when this court has

included exclusivity in our list, it has never garnered separate attention, much less

been the reason why a claim to a prescriptive easement failed.20           It seems

exclusivity has been recited with the other elements of prescriptive easements that

have been imported from adverse possession cases, but it is a layabout; it has never

done any work.




      18
          See, e.g., Patterson v. Sharek, 924 A.2d 1005, 1012 (D.C. 2007) (“[T]he
adverse claimant‟s possession cannot be shared with the true owner.”); Smith v.
Tippett, 569 A.2d 1186, 1190 (D.C. 1990) (explaining that in adverse possession
context “possession need not be absolutely exclusive,” but the claimant must
“[hold] possession of the property for himself as his own and not for another” and
possession “cannot be shared with the true owner”).
      19
         Compare Kogod v. Cogito, 200 F.2d 743, 744-45 (D.C. Cir. 1952) (use
must be “open, continuous, and adverse”), with Umhau v. Bazzuro, 133 F.2d 356,
358 (D.C. Cir. 1942) (use must be “open, notorious, exclusive, continuous, and
adverse”), and Chaconas v. Meyers, 465 A.2d 379, 381-82 (D.C. 1983) (same).
      20
          In both Umhau, 133 F.2d at 358, and Chaconas, 465 A.2d at 383, the
court determined that the plaintffs had failed to plead or prove adverse use, not
exclusivity.
                                         19

      This makes sense, because, as the Restatement explains, “servitudes are

generally not exclusive.” Restatement (Third) of Property: Servitudes § 2.17 cmt.

g. To the contrary, as this court acknowledged in Kreuzer v. George Washington

Univ., 896 A.2d 238 (D.C. 2006), “[t]he servient owner is entitled to make any use

of the servient estate that will not unreasonably interfere with enjoyment of the

servitude.” Id. at 243 (quoting the Restatement (Third) of Property: Servitudes §

2.17 cmt. g) (examining the right to use a party (or common) wall between two

houses, the use of which is “acquired by prescription”). Furthermore, it is often the

case that a prescriptive easement, for example to use a driveway or a walkway, is

shared. See Restatement (Third) of Property: Servitudes § 2.17 cmt. g (“[S]everal

parties may enjoy similar servitudes in the same land without conflict, as with

easements to use roads.”).



      The rationale for a showing of exclusivity in the context of adverse

possession simply does not intelligibly transfer to prescriptive easements and only

causes confusion. Again, as the Restatement explains:


             In adverse-possession doctrine, the exclusivity
             requirement describes the behavior of an ordinary
             possessor and serves to give notice to the owner. In
             servitudes cases, however, it puts courts into the
             awkward position of explaining that the requirement does
             not mean that the use is such as to exclude others, or, that
             the user in fact has excluded others from the servient
                                         20

             estate. Instead, [courts] explain, it simply requires that
             the user have acted independently of rights claimed by
             others. To the extent the exclusivity requirement serves
             any function in prescription cases, it is redundant.

Id.


      We now clarify that a plaintiff need not show exclusivity to make out a

claim of a prescriptive easement. Thus, the Martins‟ concurrent and overlapping

use of the driveway with the Bicknells was entirely consistent with, and not a

legitimate basis to dismiss, their claim of a prescriptive easement.



                                 IV.    Conclusion



      For the foregoing reasons, we hold that the trial court erred in granting the

motion to dismiss. The judgment of the trial court is reversed and we remand for

proceedings consistent with this opinion.



                                                     So ordered.
