6.8 Basis for Establishing Easements by Prescription

• Library: Real Estate Practice Deskbook (2019 Ed.)

A. (§6.8) Basis for Establishing Easements by Prescription

Easements may be created by prescription. An easement established by prescription stands in all respects as an easement obtained by grant. The method for obtaining or acquiring a prescriptive easement is analogous to that of establishing title by adverse possession. In Moore v. Quirk, 81 S.W.3d 717, 721 n.3 (Mo. App. S.D. 2002), the court noted that "at times we may turn to case law on adverse possession to explore the meaning of the elements of easement by prescription." Adverse possession, however, denotes title acquired by the manner of possession, while a prescriptive easement is a nonexclusive right acquired by use. Glenville v. Strahl, 516 S.W.2d 781, 782 (Mo. App. E.D. 1974); Spence v. Wrobleski, 603 S.W.2d 91, 92 (Mo. App. S.D. 1980).

Establishment of a prescriptive easement requires proof of the following elements:

· Use for the statutory period of ten years

· Adverse nature of the use

· Use under a claim of right

· Notice to the owner of the use, its character, and claims of right

See:

· Sutter v. Sims, 563 S.W.2d 533, 536 (Mo. App. S.D. 1978)

· Chase v. Fania, 675 S.W.2d 87, 88 (Mo. App. E.D. 1984)

· Roberts v. Quisenberry, 242 S.W.2d 26, 28 (Mo. 1951)

· Speer v. Carr, 429 S.W.2d 266, 268 (Mo. 1968)

Courts recognize prescriptive easements only when the elements have been established by clear and convincing evidence because the law disfavors prescriptive easements. Tuf Flight Indus., Inc. v. Harris, 129 S.W.3d 486, 488–90 (Mo. App. W.D. 2004).

Section 516.090, RSMo 2016, applies to easements generally so that prescription will not run against the entities protected by § 516.090. Reardon v....