The petition also sought a permanent injunction and a declaration of the rights of the parties and the public to the vacant lot property. Special Judge Jack O. Edwards granted Custom Muffler's request for a preliminary injunction, and enjoined the Gordons from maintaining any barrier within forty feet of the side of the Custom Muffler building which faced the vacant lot and which contained the rear bay. A trial then ensued on the issues of the permanent injunction and the declaration of the parties' rights. Circuit Judge Thomas J. Brown, III found a prescriptive easement on behalf of Custom Muffler, and permanently enjoined the Gordons from maintaining any barrier within twenty, not forty, feet of the pertinent side of the Custom Muffler building. The trial court also found that, although there was evidence of vehicular traffic across the path through the vacant lot between the gaps in the curbs, the court did not find the evidence sufficiently clear and convincing to justify recognition of a prescriptive easement there in favor of the public or either of the plaintiffs.
All parties appeal from the judgment.
In their appeal, Custom Muffler and Car Parts claim that the trial court erred by failing to hold that a public or private trafficway was established by prescriptive easement across the vacant lot between Conrad and Beck Streets. They contend that there was clear and convincing evidence that the trafficway was used openly, adversely, and continuously for more than ten years. The trial court did not err by refusing to recognize a private trafficway across the vacant lot. The owner of Car Parts did testify that his vehicles used this route twenty to thirty times a day, but he also stated that he thought the route was a public way. No claim of individual right of easement by prescription may arise under such circumstances.