prescriptive easement

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A prescriptive easement is an easement acquired through open and notorious use of an owner’s land which is adverse to the owner’s rights, for a continuous and uninterrupted period of years. The period of years required for such an easement is defined by state laws. A use may be sufficiently continuous for a prescriptive easement if it is consistent with the needs of the use and shows a continuity of purpose. However, a negative easement cannot be acquired through prescription because there is no trespass on the owner’s land. 

In Oregon, a claimant of a prescriptive easement must show that their use was open and notorious, adverse to the rights of the servient owner, and continuous for a 10-year period. The claimant does not need to show exclusive use. In the case of Beebe v. DeMarco for example, the court addressed whether the use of a roadway by the Plaintiff was continuous and adverse. 

  • The court explained that continuous use considers only the “character of the user’s state of mind and requires only that the alleged easement be used in a manner consistent with the needs of the user.” The user is only required to show that they made such reasonable use of the way as required by their needs. Here, the plaintiff and her husband used the roadway when they needed to access the rear of their property, used it often enough between 1959-1990, and never expressed an intention to abandon their use. Therefore, their use was sufficiently continuous. 

  • In this jurisdiction, a use that is open and notorious for a 10-year period is presumptively adverse. To rebut this presumption, the defendant would need to show that (1) the plaintiff used an existing road and did not interfere with the defendants’ use by doing so, or (2) that the plaintiff used the road with permission. Here, the defendant failed to show either of these elements, and therefore failed to rebut the presumption. Therefore, the plaintiffs’ use was sufficiently adverse.

[Last updated in July of 2020 by the Wex Definitions Team]