Also known as:non-express easement · nonexpress easement · nonexpress easements · implied easements · easements by prescription
Written by attorneys · grounded in primary & secondary sources — see below
An informal property interest granting a limited right to use land belonging to another, created by operation of law through implication from prior use, prescription via long adverse use, necessity, or estoppel rather than by express grant or reservation in a deed.
Sources & Authorities
How it applies
Common Examples
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Seasonal Farm Track Use
Nigel Nelson drove tractors and supply trucks across Naomi Norton's adjoining orchard along the same dirt track every calving season for fifteen years. He widened the track with gravel and installed a culvert without asking permission, and Norton never objected until she fenced the route. Nelson sues to continue the seasonal crossings. The court recognizes a prescriptive easement because the open, adverse, and continuous use satisfied the statutory period fixed by local law.
Divided Tract Access Route
Nia Nkosi conveyed a forty-acre tract to Nexus Financial while retaining a ten-acre parcel that had long used an interior lane for access. The lane had been obvious and continuous before the division, and no other practical route existed. Nexus later blocked the lane for its own development. The court holds that an implied easement arose by operation of law at severance because the prior unified use and visible dependence on the lane created the necessary circumstances for the non-express right.
Select any source to read its text and confirm it supports the definition.
Restatements
Casebooks
Wetmore v. Ladies of Loretto, Wheaton73 Ill. App. 2d 454, 220 N.E.2d 491 (1966)
Common questions
Frequently Asked
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What elements must be shown to establish a prescriptive easement?+
The use must be open and notorious, adverse, and continuous for the statutory period fixed by local law. Seasonal but recurring use that matches the claimed right counts as continuous. The claimant need not show daily use or a written document.
Supporting sources
How does a non-express easement differ from an express easement?+
An express easement requires a writing that satisfies the formalities of a deed. A non-express easement arises by operation of law from circumstances such as prior use at severance, long adverse use, or necessity, without any written instrument.
Supporting sources
Does long use alone create an easement by necessity?+
No. Easements by necessity require prior common ownership and strict necessity at the moment of severance. Long use without those elements supports only a prescriptive claim, not an easement by necessity.
Supporting sources
Can a non-express easement be limited in scope after creation?+
Yes. The scope is measured by the extent of the adverse use during the prescriptive period or by the prior use that gave rise to the implication. Later intensification that unreasonably interferes with the servient estate may be enjoined.
Supporting sources
71 P.3d 938 (Colo. 2002)Property
…majority determines that the same rules should be applied to easements and profits and adopts the Restatement's position that easements by prescription do not always require a finding of adversity; instead such easements may result from an intended but imperfectly created servitude. In addition, I agree with the majority's conclusion that…