Also known as: easements by prescription · prescriptive easement · prescriptive easements
Written by attorneys — see sources below.
A nonpossessory right to use land belonging to another that arises from open, notorious, adverse, and continuous use of the servient estate for the period fixed by local law as sufficient for obtaining easements by prescription. The use must satisfy the same elements required for adverse possession except that use replaces possession, and the resulting right is limited to the scope of the actual adverse use during the prescriptive period.
Edgar Evers has driven farm equipment daily across a dirt path on Evelyn Ellison's adjacent field for exactly twenty years. State law fixes the prescriptive period at twenty years. After the period expires, Evers holds an easement by prescription limited to the agricultural use shown during those years, and Ellison cannot block the path without facing an action to protect the prescriptive right.
Eric Espinoza has used a gravel road across Empire Logistics' property to reach his warehouse every weekday for fifteen years without permission or objection. When Empire installs a gate, Espinoza sues to protect his continued access. The court recognizes an easement by prescription because the open, continuous, and adverse use satisfied the statutory period and fixed the scope to the warehouse traffic shown during that time.
The plaintiff, Frank Prah, owns a residence in a subdivision in the Town of Muskego that he constructed during 1978 or 1979. His home includes a solar energy system which includes roof-mounted solar collectors located on the south side of the roof. The solar energy system supplies heat for the plaintiff's domestic hot water and space heating. The plaintiff has invested $20,000 in his solar heating system. In 1980, the defendant, Richard D. Maretti, acquired the vacant lot immediately south of Prah's property and began planning to build a two-story residence whose roof would extend to within twelve feet of the lot line. The proposed structure would cast a shadow over Prah's solar collectors during the winter months, rendering the heating system inoperable. Prah informed Maretti about the solar system and asked him to adjust the location of the new home to avoid interference with the collectors, but Maretti declined to modify his plans. Prah then filed suit in the Circuit Court for Waukesha County, alleging that the construction would constitute a private nuisance and seeking injunctive relief along with compensatory and punitive damages. The circuit court dismissed the complaint for failure to state a claim. On appeal, the court of appeals certified the case to the Supreme Court of Wisconsin, which accepted certification.
View caseThe use of the servient estate must be actual, open and notorious, hostile and adverse, continuous and uninterrupted, and must continue for the full statutory prescriptive period. Some jurisdictions also require exclusivity. The elements parallel adverse possession but substitute use for possession.
The extent of the easement is limited to the actual use made during the prescriptive period. Subsequent increases in use that unreasonably burden the servient estate are not permitted.
Supporting sources
No. The use must be adverse and without permission. Use that begins as permissive never ripens into a prescriptive easement unless the permission is later withdrawn and the use continues adversely for the full statutory period.
Supporting sources
Payment of taxes is not required in most jurisdictions and is relevant only as evidence of a claim of right. The focus remains on the character and duration of the use itself.
…across adjoining property. We do not agree with the defendant's analysis. The doctrine of ancient lights was a doctrine of easement by prescription. The doctrine of ancient lights has no application to this case. The plaintiff is not claiming an easement by prescription. The plaintiff is claiming that the defendant's proposed…