Property

Fact pattern

A owns Lot #1, located in a small, residential subdivision consisting of one street running east to west. Lot #1 is the only lot on the cul-de-sac at the western end of the street. Adjoining Lot #1, further to the west, is a public park. The park cannot be reached from this street without crossing Lot #1.

On the same street, to the east of Lot #1, are Lot #2 and Lot #3. These lots are owned by B and C, respectively. A, B, and C are the original owners of their respective lots, which they purchased 13 years ago when the subdivision was created from a single large parcel of land.

At least once per week since purchasing their lots, B and C have walked across Lot #1 to reach the park. They have always taken the same route, just inside the southern boundary of Lot #1. Over the years, B and C have worn a small footpath along this route. This footpath would be visible to anyone inspecting Lot #1. Because of the way the public roads are situated, if B and C could not cross Lot #1, they would have to drive five miles to reach the park.

Neither B nor C has ever spoken with A about using the footpath. On many occasions, A has smiled and waved to B and C as they walked along the footpath. At other times, A has crossed the yard to the footpath and talked briefly with B or C about sports, the weather, or other general topics. At no time has A given express permission to B or C to use Lot #1, nor has A ever expressly prohibited this use.

After 13 years of ownership, A sells Lot #1 in fee simple to D. One week later, B sells Lot #2 in fee simple to E. The deeds and other documents underlying these sales make no mention of any rights of access across Lot #1.

In the days immediately following the sale of Lot #1, C and E continue to use the footpath. They do not discuss this use with D, nor is it clear whether D is aware of this use. Within two weeks of purchasing Lot #1, D posts a sign at the entrance to the footpath that reads, “No Trespassing.”  When C and E inquire about the sign, D tells them that they are no longer allowed to cross the property. C insists that C and E have an easement permitting them to cross Lot #1 via the footpath, based on B and C’s history of using the footpath. C also points out to D that without the use of the path, it will be much more difficult for C and E to get to the park. D does not relent. The statute of limitations for adverse possession in this jurisdiction is 10 years. 

Question

When D prohibited the use of the footpath, did C or E have any legal interest that would permit either to continue to use the footpath over D’s objection? Explain.