District of Columbia Court of Appeals clarifies public easement rules

The District of Columbia Court of Appeals has clarified a pair of rulings from 1896 and 1899 as to how public easements may be accepted. In Kalorama Citizens Association v. SunTrust Bank Company, the Court held that a public easement, such as the disputed open plaza being used by vendors for a farmers’ market, may be accepted by either the government or by the public through general use.

The sole issue before the Court concerned the grant of summary judgment against two community organizations due to lack of standing. First deciding that both entities had constitutional and prudential standing, thus necessitating a remand, the Court took the opportunity to state that the entities must prove both an offer and acceptance of the dedication. For a public easement, the owner must intend to dedicate the land for public use as mere assent to use by the public is ineffective. However, the Court found no cases since 1899 as to whether the public may accept such a dedication and, if so, how it may do so.

The Court ruled that no single general rule was determinative of how the public may accept an offer of an easement. Nevertheless, actual occupation by the public and lengthy continued public use, even without acceptance by the government, may suffice.

On remand, the Kalorama trial court will determine whether a 1976 letter written by the owner during construction of the questioned open plaza stating that the disputed area was to be constructed “in such a way as to preserve its open quality, attractiveness and accessibility to the vendors that presently use it,” was sufficient to constitute an offer of dedication. The trial court will also determine whether the use by the vendors for more than 40 years constitutes acceptance or whether the practice of licensing the farmers’ market vendors to use the open plaza, as well as continued maintenance by the owner, is inconsistent with public acceptance.

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Chris Glaser