The following passages are excerpts from Kris Kline’s latest book “Prescriptive Easements & Related Principles.” (200 pages, softcover.) Paragraphs, line spacing and fonts are adjusted for web presentation. Note: The format of this book includes cites within the text rather than as footnotes. Copies are available only from the author at www.2point.net.
Prescriptive Easements
& Related Principles
Kristopher M. Kline
P.L.S., G.S.I.
Published by: 2Point, Inc.
“If we pull up the very roots out of which easements grew (that is, the presumption that there must have been a grant for the use to persist over twenty years) we are immediately thrown on the necessity of judicially legislating our own conditions of 20 years of adverse possession. I have grave doubts whether we can keep the strands of our legal fabric from becoming very much tangled by simply saying that “all the elements involved and necessary to establish a prescriptive easement are elements of adverse possession.””
Big Cottonwood Tanner Ditch Co. v. Moyle, 174 P.2d 148 (Utah 1946)
“…the “ancient roots and arcane rationale” of prescriptive land rights have become increasingly difficult to “square with modern ideals in a sophisticated, congested, peaceful society.””
Butterfly Realty v. Romanella: 93 A.3d 1022 (R.I. 2014)
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Introduction: What is a Prescriptive Easement?
The unfortunate truth is that easements—prescriptive or otherwise—have been treated as “poor relations” or insignificant side issues for centuries. This collective lapse has been perpetuated by land use professionals, the courts and the general public. This book unites my continued fascination with prescriptive rights with a growing interest in easements and other incorporeal servitudes. My intent is to reach beyond the more heavily documented area of adverse claims of fee title and, instead, focus on topics that have been marginalized in previous works.
An article by Marian Opala (Chapter 1: History and Development) opened my eyes to the unique origins and development of prescriptive easement law. With the floodgates opened, research revealed a wealth of unusual disputes, confusion within individual state courts and some amazing recent developments. The torturous evolution of prescriptive easement law in the United States is more than sufficient to merit the development of a separate book focusing exclusively on prescription and its effects on incorporeal rights.
This book is intended as an in-depth study of prescriptive easement law, and selecting clear terms for explaining the various corollaries can be a challenge. While some aspects can be explained using straightforward grammar, specific elements often are best described using obscure legal terms rather than colloquial expressions. Definitions for unusual terms may be found in the Glossary.
What is a prescriptive easement? At its most basic level, it is, first and foremost, an easement. The New Mexico decision Dethlefsen v. Weddle: 284 P.3d 452 (2012) describes the attributes of an easement: “An easement is distinguished from a fee, and constitutes a liberty, privilege, right, or advantage which one has in the land of another.” American courts consistently agree that easements can be created by many mechanisms, including prescription.
Based on local common law requirements, most U.S. courts offer similar definitions of prescriptive easements. One excellent general definition is found in Roberts v. Jackson: 384 S.W.3d 28 (2011). The Arkansas court observes: “A prescriptive easement may be gained by one not in fee possession of the land by operation of law in a manner similar to adverse possession.” The holder of a prescriptive easement perfects a limited right to use the land of another but does not gain a possessory interest. Some mineral rights are susceptible to adverse possession and prescription may result in the creation of a Profit a Prendre. Prescriptive easements are not favored in law and will not be recognized in the face of fragmentary evidence or hearsay.
In the South Carolina decision Simmons v. Berkley Electric: 797 S.E.2d 387 (2016), Judge Beatty distinguished between implied easements and those created by prescription: “A prescriptive easement is not implied by law but is established by the conduct of the dominant tenement owner.” Unlike prescriptive easements, implied easements are based on a common intent between grantor and grantee.
When compared to relevant case law associated with other aspects of real property law, decisions associated with prescriptive easement claims are more likely to be of recent vintage. Numerous rulings included in this book highlight the courts’ struggles to develop basic precedent in the last 50 years. Individual state courts have attempted to clarify the array of details that support the basic doctrine. Others have made valiant attempts to reconcile conflicting precedent within their jurisdictions, with inconsistent results. Meanwhile, claimants continue to file unusual claims that test the ingenuity and flexibility of the legal system.
While this book is focused primarily on the creation and extinguishment of prescriptive easements, it also considers several related areas of easement law where prescriptive rights have been invoked to justify a decision. Both courts and state governments have struggled to develop coherent precedent and statutes to justify the recognition of public highways based on years of continuous use. To further complicate matters, prescription can extinguish private record easements under appropriate circumstances.
Finally, parties may improperly claim a prescriptive easement when some other legal remedy is more appropriate. Landowners still attempt to perfect rights (ostensibly by prescription) where no relevant precedent exists. Courts are also called to consider prescriptive claims associated with other types of servitudes, including mill dams, irrigation ditches, canals and prior appropriations.
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