November 7, 2013
Utah Court of Appeals
2013 UT App 265
Filed: November 7, 2013
The Court of Appeals reviewed a claim that a property owner had acquired a prescriptive easement on a neighboring property. In the decision, the Court reiterated some of the important factors relevant to establishing a prescriptive easement.
To establish a prescriptive easement, a party must show all elements by clear and convincing evidence.
An easement may be established by showing that use of the property is (1) open, (2) notorious, (3) adverse to the property owner, and (4) continuous for at least 20 years. It is not necessary to prove these four elements in any particular order.
If the claimant establishes these four elements, the property owner may still defeat the prescriptive easement by showing that the use was permissive. If the property owner allowed the use, and no damage occurred, the presumption is that the use was permissive, and not a prescriptive right.
Use by a person in common with the public generally is regarded as permissive.
