No prescriptive easement for wind...

[Ian Wilson]

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Gestamp Wind N. Am., Inc. v. All. Coal, LLC, 2021 WL 3612747 (Md. Ct. Spec. App. Aug. 16, 2021)
No prescriptive easement can arise for wind
Prepared by Dale Whitman

Mettiki operated coal strip mining operations. They trucked material from the mines to a site at which the coal was separated, and the remaining material was dumped to form a large refuse pile or hill. Over time, Mettiki received permission to build the hill higher and higher.

Meanwhile, beginning in 2010 Gestamp’s predecessor began construction of a wind turbine farm consisting of 20 turbines on land adjacent to Mettiki’s. As Mittiki’s pile of refuse grew higher, Gestamp claimed that it began to interfere with the flow of wind to some of the turbines, impeding the air flow to them and reducing their power output. Gestamp claimed that further reductions were to be expected in the future.

Gestamp claimed that this action by Mettiki constituted a nuisance. Maryland had adopted the Torts Restatement’s definition of nuisance, “a nontrespassory invasion of another's interest in the private use or enjoyment of land.” However, the court pointed out that a nuisance can exist only if the plaintiff’s property rights are violated. In Maryland (as in virtually the entire US) there is no property right to unimpeded flow of light or air. “Absent an agreement between the parties or a government regulation, a property owner has no right to prevent a neighbor from altering its property in ways that affect air and light on the plaintiff's property.” The English doctrine of “ancient lights,” under which one could acquire a prescriptive easement for continued flow of light or air, had never been adopted in Maryland. Since there was no violation of Gestamp’s property rights, there could be no nuisance.

Gestamp pointed to cases in other jurisdictions holding that wind rights could be severed from the surface estate and transferred separately. Maybe so, the court said, but it (correctly) held that this fact was irrelevant to the matter before the court.

Gestamp noted that Mittiki’s predecessor had granted an easement to Gestamp, and argued that a duty to provide unobstructed air flow arose from that easement. Nice try, the court said, but the easement was for completely different purposes: a power line and a roadway across Mittiki’s property, and a temporary staging area on Mittiki’s land for construction purposes. None of this had anything at all to do with air flow or even covered the portion of Mittiki’s land where the refuse pile was located. Hence the easement created no duty to provide unobstructed air flow.

The bottom line: It is certainly possible for one party to expressly grant an easement for air or light. But no prescriptive easement for those purposes will ever arise,, and no nuisance claim that depends on such a prescriptive easement will be recognized.

Dale A. Whitman
Professor of Law Emeritus, University of Missouri

[mpallamary]

No Doctrine of Ancient Lights.