### 140Nev.,AdvanceOpinion 07 IN THE SUPREME COURT OF THE STATE OF NEVADA

BO JONESAND DANJONES, HUSBANDAND WIFE, Appellants, vs. HAMED GHADIRI, ANINDIVIDUAL, Respondent. No. 85305 

# FIED

Appeal from a district court summary judgment in a real property dispute. Eighth Judicial District Court, Clark County; Crystal Eller, Judge.

Affirrned.

Black & Wadharns andAllison R. Schmidt, LasVegas, forAppellants. Law Office ofMalik W.Ahmad and Malik W.Ahnnad, LasVegas, for Respondent. Maupin, Cox & LeGoy and Rick R. Hsu, Reno, forAmicus Curiaethe State Bar ofNevada, Real PropertySection.

BEFORE THE SUPREME COURT, EN BANC.1

1

### The Honorable Patricia Lee, Justice, being disqualified, did not participate in the decision ofthis matter.
SUPREME COURT

OF NEVADA
(0) 1947A eakIDT.

'

### OPINION

By the Court, STIGLICH, J.:

Long before the parties acquired ownership oftheir respective properties, a block wall was erected to divide the neighboring lots. When respondent discovered that the wall did not follow the property line and, consequently, that he wasbeingdenied the use ofhisproperty, he sought to
remove the wall and build a new one on the property line. In response, appellants filed a complaint in the district court for, among other things, a prescriptive easement or adverse possession. The district court found that appellants could not prevail on their claim for adverse possession because they did not pay the property taxes on the disputed property. The district court further found that a prescriptive easement was unavailable because it would result in respondent's complete exclusion from the subject property. Accordingly, the district court granted summary judgment for respondent, determining that appellants are not entitled to a prescriptive easement or adverse possession as a matter oflaw.

We take this opportunity to distinguish the two concepts, as they are fundamentally different and give rise to distinct relief. As Nevada law does not concretely declare whether we recognize comprehensive prescriptive easements, easements that result in the complete exclusion of the servient estate from the subject property, we examine the approaches taken by sister jurisdictions. While several states have categorically rejected comprehensive prescriptive easements, California has adopted the view that exceptional circumstances may give rise to such easements. Considering both our caselaw and California caselaw, we are persuaded that exceptional circumstances may warrant comprehensive prescriptive easements. However, we stress that such reliefisrare. As appellantshave

SUPREME COURT

OF NEVADA
(0) 1947A TtZDT) 2not demonstrated exceptional circumstances, we affirm the district court's

order granting summaryjudgment in favor ofrespondent.

FACTSAND PROCEDURAL HISTORY In 2015, appellants Bo and Dan Jones purchased property in Las Vegas. Immediately thereafter, the Joneses made substantial improvements near a block wallthat hadbeen erected in 1989 and that ran between their property and the neighboringproperty. These improvements included the installation ofrecreational vehicle utility hookups and a new iron gate. When not traveling, the Joneses also stored their recreational vehicle next to the block wall.

In 2016, respondent Hamed Ghadiri purchased the propertv located on the other side of the block wall. Several years later, Ghadiri discovered that a portion of his property was on the Joneses' side of the block wall (the disputedproperty). The disputedpropertyis 591squarefeet in size. Ghadiri commissioned a survey of the property line, which confirmed that the wall was not on the property line and that the disputed property was on Ghadiri's side ofthe lot line. Ghadiri acquired a permit to destroy the block wall and install a new wall on the property line at his expense. The Joneses filed a complaint against Ghadiri for, inter alia, a prescriptive easement, adverse possession, and a temporary restraining order. Although the district court granted a temporaryrestrainingorder, it denied the Joneses' subsequent motion for a preliminary injunction. This court affirmed the district court's denial, Jones v. Ghadiri, No. 83184, 2022 WL 3336143 (Nev. Aug. 11, 2022) (Order of Affirmance), and Ghadiri removed the wall sometime thereafter.

Later, Ghadiri moved for summary judgment against the Joneses' claims for adverse possession and a prescriptive easement.

SUPREME COURT

OF NEVADA (0) 1917A .1

4 ;1.7*• 3Ghadiriasked the court to dismiss theJoneses claim for adversepossession

because the Joneses had not paid property taxes on the disputed property. Relying heavily on California caselaw, Ghadiri further contended that a prescriptive easement was unavailable, as it would result in his complete exclusion from the disputedproperty. TheJoneses asserted that a question of fact remained as to who paid taxes on the disputed property and that Nevada caselaw recognizes prescriptive easements resulting in a landowner's complete exclusion frorn the subject property.2

After granting summaryjudgment in Ghadiri's favor as to the claim for adversepossession, the district court notedthat theJoneses'claim for a prescriptive easement was "essentially a meshing of adverse possession with a prescriptive easement." Given the dearth of Nevada caselaw on the availability of such easements, the district court considered
cases from neighboring states, such as California and Arizona. Following those cases, the court determined that a prescriptive easement "simply cannot be so extensive as to create the practical equivalent of an exclusive possessory estate" and that adverse use, as an element of a claim for a prescriptiveeasement, "cannot result inthecompleteexclusionofthe owner ofthe servientestate." The districtcourt notedthat anunpublished Nevada case, CSADevelopment, LLC v. Bryant, No. 68444, 2016 WL 7105072 (Nev. Dec. 2, 2016) (Order ofAffirmance), arguably recognized the availability of prescriptive easements that result in the servient estates' complete exclusion from the subject property. Ultimately, however, the district court

21n relation to their claim for adverse possession, the Joneses argued that a question of fact remained as to who paid taxes on the disputed property because property taxes are partly based on visual inspections conducted every five years. As the Joneses do not challenge the district court's order as to their claim for adverse possession, we do not address it further.
SUPREME COURT

OF NEVADA
(07 I947A 4indicated that the case had little persuasive value because it lacked clarity

as to when such a prescriptive easement was available. Finding that no exceptional circumstances justified the Joneses' requested prescriptive easement, the district court granted summaryjudgment in favor ofGhadiri
on the claim. The Joneses now appeal. DISCUSSION The Joneses primary contention on appealisthatbecause they
were entitledtoaprescriptive easement asa matter oflaw,thedistrictcourt erred in granting Ghadiri's motion for summaryjudgment.3 We review a district court's grant ofsummaryjudgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). "Surnmary judgment is appropriate

. . . when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine issue ofmaterialfact exists, and the moving party is entitled tojudgrnent as a matter of law." Id. at 731, 121 P.3d at 1031. We "review questions of law, including interpretation of caselaw, de novo." Martin v. Martin, 138 Nev., Adv. Op. 78, 520 P.3d 813, 817 (2022). Adversepossession versus easements

As acknowledged by the district court, the arguments and claims for adversepossession and a prescriptive easementbecame muddled below. And while the Joneses do not challenge the district court's rejection of their adverse possession claim, it is necessary for us to distinguish the

3The Joneses also contend that the district court erred by admitting Ghadiri's survey because it was unauthenticated. As the Joneses did not raise this argument below, we decline to entertain it. SeeDiamond Enters., Inc. v. Lau, 113 Nev, 1376, 1378, 951 P.2d 73, 74 (1997) ("It is well established that arguments raised for the first time on appeal need not be consideredby this court.").

SUPREME COURT

OF NEVADA
(0) 1947(1 5concepts before considering the propriety of the Joneses' claim for a

prescriptive easement.

"Adverse possession is a doctrine under which a person in possession of real property owned by someone else may acquire valid title

. . . ." 142Am.Jur. 3dProofofFacts 349 (originallypublishedin 2014). The holder of valid title is vested with all property rights, including the right to exclusively control the property, subject to any easernents. See City of Fredericktown v. Osborn, 429 S.W.2d 17, 22 (Mo. Ct. App. 1968) (explaining that generally, "an owner has the right to the exclusive possession and control of his property") (citing Hoffmann v. Kinealy, Mo., 389 S.W.2d 745 (Mo. 1965)). "[A]n adverse possessor is required to show that the occupation of the property is hostile, actual, peaceable, open, notorious, continuous and uninterrupted." Triplett v. David H. Fulstone Co., 109 Nev. 216, 219, 849 P.2d 334, 336 (1993) (internal quotation marks omitted). An adverse possessor must also show "that the land has been occupied and claimed for the period of 5 years, continuously, and that the party orpersons, their predecessors and grantorshave paid alltaxes, state, county and municipal, which may have been levied and assessed against the land for the period mentioned." NRS 11.150.

A prescriptive easement is a common law claim by which one may acquire the legal right to use land that he or she does not own. See Restatement (Third) of Property (Servitudes) § 1.2(1) (1998) (explaining that easements create "a nonpossessory right to use land in the possession ofanother" (emphasis added)). "[A]dverse, continuous, open and peaceable
use for a five-year period are the requisite elements for claiming" a prescriptive easement. Jordan v.Bailey, 113Nev. 1038, 1044, 944P.2d 828, 832 (1997). Importantly, an easement, whether prescriptive, implied, or otherwise, generally grantsa "non-possessory interestin the land ofanother

SUPREME COURT

OF NEVADA
(0) I947A 6which entitles the owner ofthe easement to a limited use or enjoyment of

said land." Hall & Buckley, Nevada Real Property Practice & Procedural Manual, 32 (Nev. State Bar 2021) (citing Restatement (First) of Property § 450 (1944)) (emphases added). As this court explained in Boyd v. McDonald,"[a]neasementisa right, distinctfrom ownership, touseinsome waythe landofanother.

. . . It givesno right topossesstheland uponwhich itisimposed,but a rightmerelytothepartyinwhom theeasementisvested to enjoy it." 81 Nev. 642, 647, 408 P.2d 717, 720 (1965) (internal quotation marks and alterations omitted). Thus, the crucial difference between adverse possession and an easement is that the former results in the acquisition oftitle and the right to exclusively control the subject property while the latter results in the right to a limited use ofthe subject property. Hebert v. City ofFifty Lakes, 744 N.W.2d 226, 231 n.3 (Minn. 2008).

Here, the Joneses asserted a claim for a prescriptive easement, but their requested relief aligns with adverse possession. After all, the Joneses demanded more than the rnere use of the disputed property; they sought exclusive control ofit. And to seek exclusive control ofthe disputed property is to seek adverse possession. The trouble for the Joneses, as recognized by the district court, is that they have not paid the requisite property taxes on the disputed property. Thus, the Joneses sought adverse possession under the guise ofan extraordinaryprescriptive easement. This type ofeasement is known as a "comprehensive prescriptive easement," as, unlike atypicaleasement,it resultsintheownerofthe servient estatebeing completely excluded from the subject property. Will Saxe, When "Comprehensive" Prescriptive Easements Overlap Adverse Possession: Shifting Theories of "Use"and "Possession,"33 B.C. Env't Aff. L. Rev. 175, 193 (2006).

SUPREME COURT

OF NEVADA to) 1917A 7We will not lightly allow the long-recognized distinction

between adverse possession and prescriptive easements to collapse. Nor will we lightly allowparties to reap the fruitsofadversepossession without complyingwith statutory requirements. We therefore reject the liberal use of comprehensive prescriptive easements and clarify when comprehensive prescriptive easements may be available in Nevada. Comprehensive prescriptive easernents are available only in exceptional circumstances

The Joneses argue that Nevada law recognizes comprehensive prescriptive easements and that the district court erred by relying on California authority to hold otherwise. The Real Property Section of the Nevada State Bar, as amicus curiae, argues that CSA blurred the line between adverse possession and prescriptive easements and that the distinction between the two, as recognized in Boyd, should be followed. Ghadiri argues that this court should follow California cases, which he asserts have rejected comprehensive prescriptive easements. We begin by examining Nevada caselaw to see whether comprehensive prescriptive easernents are available.

In CSA, Patrick and Eleanor Bryant graded their lot and constructed a block wallthereon. No. 68444, 2016 WL 7105072, at *1. The block wall encroached onto an adjacent vacant lot. Id. At least 16 years later, CSA purchased the vacant lot and filed suit, alleging quiet title, nuisance, trespass, and unjust enrichment. Id. The Bryants claimed they had a prescriptive easement over the area encroached upon by the block wall, and the district court agreed. Id. Although CSAaffirmed the district court's ruling, id. at *3, this court did not consider or analyze the circumstances under which we will recognize comprehensive prescriptive easements. As is common of unpublished dispositions, CSA also did not

SUPREME COURT

OF NEVADA
./0 1947A ••••••11;,";:v• 8SUPREME COURT

OF NEVADA (01 1917A clkTy:m 

### includeadetailedfactualbackgroundi suchasadescriptionofthewall,how

much it encroached onto the vacant property, or whether the easement would prevent CSA from using and enjoying a substantial portion of its property. As a result, we are unable to rely on CSA for the broad interpretationproposedbytheJoneses. Thus, we disavowanylanguage in CSA that may be read as allowing for a comprehensive prescriptive easement without articulation of a rationale for granting such an extraordinaryeasement.

The Joneses' reliance on our decision in Boyd, where we affirmed a district court order granting an easement that resulted in the servient estate's complete exclusion from the subject property, is likewise misplaced. 81Nev.at652, 408P.2dat 722. InBoyd, a supportingwalland overhangingroofofa motelextended2.6feetontoanadjacentproperty. Id. Additionally,themotelmaintaineda signthatwas"somedistancefromthe boundary" line.4 Id. at 644, 408 P.2d at 718. After recognizingthat "[a]n easement is a right, distinct from ownership,"this court concluded that an easement existed only as to the 2.6-foot encroaching wall and roof. Id. at 647, 408 P.2d at 720 (internal quotationsomitted). However, we held that the sign could notbe classified as an easementbecause it wastoo far from theboundaryline. Id.at 652, 408P.2d at 722-23.

Unmistakably, there was no argument for a prescriptive easement in Boyd. Id. at 650 n.8, 408 P.2d at 721 n.8. Rather, this court consideredwhethertherewasaneasementbyimplication, orwhether "the owner of two parcels had so used one to the benefit of his other that, on selling the benefited parcel, a purchaser could reasonably have expected, without further inquiry, that thesebenefitswere included in the sale." Id.

4

### Also in dispute was a patio and driveway; however, this court remandedthoseissuesfor furtherproceedings. Id.at 652, 408P.2d at 723. 9at 649, 408P.2d at 721. Unlike aprescriptive easement,which we described

in passing as "a condition generally analogous to adverse possession," an easement by implication depends on the intention of the parties, as shown by the reasonable expectation ofa person purchasing or receiving land. Id. at 647-49, 408 P.2c1 at 720-21. Despite the different type of easement at issue, Boyd is instructive as it recognized a comprehensive easement only
astothe roofand wall that encroached a mere 2.6 feet;this court refused to extend such an easement to the sign that "was so removed from the boundary

. . . that no reasonable purchaser could have considered it part of the transaction without at least some inquiry." Id. at 652, 408 P.2d at 722- 23. Thus, Boyd implicitly acknowledged limits on a comprehensive easement, albeit not in the context ofa prescriptive easement.

Because Nevada lacks caselaw directly on point, we turn to the approaches taken by jurisdictions that, like Nevada, require adverse possessors to pay taxes on property subject to an adverse possession claim. Many of these jurisdictions, including Arizona, Florida, Idaho, Montana, and Utah, have categorically rejected comprehensive prescriptive easements. See generally Etz v. Marnerow, 233 P.2d 443, 444 (Ariz. 1951); Platt v. Pietras, 382 So. 2d 414, 416 (Fla. Dist. Ct.App. 1980); Oakley Valley Stone, Inc. v. Alastra, 715 P.2d 935, 938-39 (Idaho 1985); Burlingame v. Marjerrison, 665P.2d 1136, 1140(Mont. 1983);Nyman v.AnchorDev., LLC, 73 P.3d 357, 362 (Utah 2003). They have done so for two common reasons. First, comprehensive prescriptive easements blur the distinction between adverse possession and easements. Second, comprehensive prescriptive easements subvert the tax requirement for adverse possession.

California, however, has recognized that a comprehensive prescriptive easement may be warranted in exceptionalcircumstances. See Mehdizadeh v.Mincer, 54 Cal. Rptr. 2d 284, 290 (Ct.App. 1996) ("There are
SUPREME COURT

OF NEVADA
(01 1947A , 1Dir , 10some circumstances in which the grant of an exclusive easement, which

resembles or is nearly the equivalent of a fee interest, can be justified."). Such circumstances may include a "socially important duty of a utility to provide an essential service, such as water or electricitykr id. at 290, or where public health or safety is at issue, cf. Otay Water Dist. v. Beckwith, 3 Cal. Rptr. 2d 223, 226 (Ct.App. 1991).

Though the categorical rejection of comprehensive prescriptive easements is well-reasoned, we adopt the view, astakenby California, that comprehensive prescriptive easements may be warranted if a party demonstrates exceptional circumstances. While there is no exhaustive list of exceptional circumstances that willjustify a comprehensive prescriptive easement, the deterrnination as to whether a circumstance is exceptionalis generally a fact-intensive question.

Here, the Joneses have not demonstrated exceptional circumstances warranting a comprehensive prescriptive easement. Unlike
our decisionin Boyd, where we recognized a comprehensive easement when
a nonmovable building encroached by a mere 2.6 feet and resulted in a de rninimus loss of usable property for the servient estate, here the Joneses merely made improvements to an RV parking space and the grant of a comprehensive prescriptive easement would deprive Ghadiri of nearly 600 square feet of usable space. We therefore conclude that the district court did not err and affirm the district court's grant of Ghadiri's rnotion for summaryjudgment. CONCLUSION

Nevada has long recognized the distinction between adverse possession andprescriptive easements. Whilewe continuetorecognizethat important distinction, today we also recognize that exceptional circumstances may warrant comprehensive prescriptive easements. The

SUPREME COURT

OF NEVADA
((l 947A 11

### determination as to when an exceptional circumstance is present is

generally a fact-intensive question. As the Joneses failed to demonstrate any such circumstance, we affirm thejudgment ofthe district court.

We concur: 

## Al4GAX Stiglich , J.



### (a/2 Cadish , C.J.

'1 

### J Pickering



## - Herndon 

## cl-A-A Parragu 1 

### J

J

SUPREME COURT OF NEVADA (0) I947A 

### 12