May 8, 2020
Background. Since August 1996 a family used a road that went across a neighboring property, to access their cabin property. In June 2016, the landowner of the neighboring property told the family that they could no longer use the road and attempted to block access to it. However, the family continued to use the road which caused the landowner to bring trespass suits against the family. A counterclaim seeking to quiet title to a prescriptive easement was also filed by the family. On summary judgment, the district court determined that a prescriptive easement existed and the scope of the easement was determined by a jury. The landowners appealed.
Holding. The “continuous” element of adverse use requires both an uninterrupted physical use and a non-permissive mental state of the adverse user. A landowner’s lack of acquiescence is irrelevant to the issue of adverse use. The “scope of easement” is determined by the nature or extent of its historical use.
Continuous Element of Prescriptive Easements. A prescriptive easement is established where the use of another’s land is open, continuous, and adverse under a claim of right for a period of 20 years. To satisfy the “continuous” element, prescriptive users only need to show that they used the easement, as often as required by the nature of the use and the needs of the user, without interruption during a 20-year period. Further, there is no requirement that the landowner acquiesced to the use.
In addition to continuous physical use, the prescriptive user’s mental state must remain continuously adverse for the same prescriptive period. This means that during the 20 years of use the user never submitted to the title of the landowner or abandoned their claim to the easement. Accordingly, a prescriptive period is interrupted when the user halts the actual use of the easement or has the understanding that they are using it by permission of the owner rather than regardless of the landowner’s grant of permission. It is the user’s mental state of submission to the landowner that interrupts the prescriptive period—not the owner’s grant of permission.
Further, actions taken by a landowner to stop a prescriptive use are effective only where it actually stops the use. Failed attempts to interrupt a prescriptive use only reinforce the argument that the use is adverse. For example, the erection of gates during the prescriptive period is immaterial to a claim for prescriptive easement if it does not prevent a claimant from using the road. Similarly, legal proceedings to stop a prescriptive use will not interrupt the prescriptive period unless it causes the user to cease using the easement adversely or it leads to a successful outcome on the landowner’s behalf.
Scope of Easement. A prescriptive easement is defined by its type (or purpose) and by its scope. The nature or extent of the historical use determines the scope. The historical use limits both the extent of the easement right granted as well as the physical boundaries of the easement itself. A prescriptive easement’s scope is limited by the burden historically imposed on the servient estate during the prescriptive period. For this reason, the prescriptive user may not enlarge the burden on the landowner to be greater than what existed during the entirety of the prescriptive period.