Tuesday, March 20, 2018

Prescriptive Easements and Adverse Possession – Obtaining Title to Land Without Paying For It


Normally land is acquired in a transaction where a buyer pays a sum to buy the property and obtain legal title to it.  However, if a person without legal title to a tract can claim legal ownership by showing that the person has possessed it for a certain amount of time without the permission of the tract’s true owner.  This is known as “adverse possession” and it has been recognized for several centuries, dating back to early English common law. 

A concept similar to adverse possession is that of a prescriptive easement.  A prescriptive easement is an implied easement for usage of another person’s tract of land where the use occurs without the true owner’s permission, and has lasted for a time period set by statute in the particular jurisdiction.  A prescriptive easement can result in title ownership over the area subject to the easement resting in the party (or parties) using the easement.   

Adverse possession and prescriptive easements are important to rural landowners.  Many cases are brought every year concerning boundary disputes that involve these concepts.  Once title is successfully obtained by adverse possession (or by prescription), the party obtaining title can bring a court action to quiet title.  A quiet title action ensures that the land records properly reflect the true owner of the property.

Obtaining title to land by adverse possession or by a prescriptive easement.  That’s the topic of today’s post. 

General Points

Obtaining title to property either by adverse possession or easement by prescription has some common requirements.  The possession must be “open and notorious” which means the possession is obvious to anyone.  In addition, the possession must be actual and continuous.  This means that the usage of the property must be uninterrupted for the applicable statutory timeframe (generally from 5 to 20 years, depending on state law).  The possession must also be adverse to the rights of the true property owner.  Also, in many states, the possession must be hostile – in opposition to the claim of someone else.  Also, adverse possession commonly requires that the possession be exclusive, but a prescriptive easement typically only requires that the prescriptive user use the easement in a way that differs from the general public. 

There are other points to both adverse possession and easement by prescription such as whether title can be obtained adverse to the government (it generally cannot) or a railroad (again, the answer is generally negative).  In addition, a negative easement cannot be created by prescription. 

Prescription may also be used to end an existing legal easement. For example, if a servient tenement (estate) holder were to erect a fence blocking a legally deeded right-of-way easement, the dominant tenement holder would have to act to defend their easement rights during the statutory period or the easement might cease to have legal force, even though it would remain a deeded document. Failure to use an easement leading to loss of the easement is sometimes referred to as "non-user."

Recent Case

The adverse possession/prescriptive easement issue came up recently in an Idaho case.  In Lemhi County v. Moulton, No. 24 2018, Ida. LEXIS 60 (Idaho Sup Ct. Mar. 13, 2018), the plaintiff, a county, sought declaratory relief to prevent flooding on the Lemhi County Backroad. The Backroad runs generally north-to-south, dividing two ranches - the Skinner Ranch (uphill property) and the Hartvigson Ranch (downhill property). The downhill property spans approximately 200 acres and is situated on the Lemhi Valley floor near the Lemhi River. Most of the downhill property is on the west side of the Backroad, but a small portion extends into a steep draw on the east side (the "Hartvigson Draw"). The water flowing through the draw runs under the Lemhi County Backroad through one of two culverts, across the downhill property, and into a draw that feeds into the Lemhi River. The uphill property is on higher ground on the east side of the Backroad. The uphill property has three drainages, one of which feeds into the Hartvigson draw.

In its declaratory judgment action, the plaintiff claimed that in November 2010, the downhill property obstructed the flow of water from the Hartvigson Draw through the culverts, which caused flooding along that area of the Backroad.  The plaintiff noted in its complaint that the failure to allow the water to pass unobstructed was based at least in part on the allegation that the uphill property sent too much water down the draw, which caused damage to the downhill property.  

The trial court entered a judgment that the downhill property allow drainage of natural surface water in the amount of 3.25 cubic feet per second (CFS) through the culverts and across its lands. However, that judgment left unresolved how much water, if any, the uphill property could legally send down the Hartvigson Draw. After a three-day bench trial, the court found that the channel through the basin, down the Hartvigson Draw, across the downhill property, and eventually into the Lemhi River was a natural waterway. Additionally, the trial court found that this water flow met the requirements for the uphill property to establish a prescriptive easement. The court entered a judgment permitting the uphill property to send water in the amount of 3.25 CFS down the basin drainage that flowed through the Hartvigson Draw under both an easement and natural servitude theory.

The downhill property owners timely appealed.  They claimed that the trial court erred in its prescriptive easement determination on two fronts: (1) the uphill property's water use was not adverse to them; and (2) the plaintiff failed to prove the scope of the easement.  They claimed that the use was not adverse because they had a wastewater right for water out of the Hartvigson draw. However, the state Supreme Court determined that the trial court’s factual findings established that the uphill landowners had been sending water down the draw for decades, before and after the established wastewater right. Thus, the Court held that the practice of the uphill landowners of sending water down the draw was under a claim of right and adverse to the downhill property owners. In addition, downhill owners claimed that no witness at trial could testify as to the exact amount of water that had regularly been sent down the Hartvigson Draw, and absent that testimony the trial court lacked clear and convincing evidence to support an easement for 3.25 CFS. However, the Court pointed to testimony by the owner of uphill property that the approximate quantity sent down the draw was between 3 and 3.5 CFS. Thus, the Court held that the trial court did not err in limiting the easement to 3.24 CFS.

The Supreme Court also determined that the trial court’s judgment was not sufficiently clear with respect to the location of the drainage. Therefore, Court remanded the case to the trial court in order to clear up the judgment with regards to the location of the drainage.


Property usage and boundary disputes are, unfortunately, too common in rural settings.  Many times, the problem stems from a fundamental lack of communication.  But, that’s not always the case.  Sometimes, issues can arise through the fault of no one.  It is those times that its good to have an experienced ag lawyer in tow.


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