Prescriptive easements: more than 'easements by adverse possession'.

• Author: Neukamm, John B.

While the vast majority of easements typically encountered by a real estate attorney in their day-to-day practice are express easements, arising pursuant to written--and, usually, recorded --instruments between the owners of the dominant (benefited) and servient (burdened) parcels of property, easements may also be implied or otherwise arise pursuant to applicable facts and circumstances. Thus, while the existence of a prescriptive easement (or an easement by way of necessity, which will be addressed in a subsequent article) is unlikely to be disclosed by a standard title search (unless such an easement is subsequently confirmed by a recorded judgement or an express easement), a careful property inspection and a thorough survey may make the existence or potential claim of the existence of such an easement evident.

Prescriptive easements are often erroneously referenced as easements arising by adverse possession, and, while many elements of prescriptive easements are akin to adverse possession claims, there are significant differences. Also, unlike adverse possession claims (and ways of necessity), which originally arose under common law but have since been codified, there is no statutory basis for prescriptive easement claims; prescriptive easements continue to exist solely under common law.

The decision of the Florida Supreme Court in Downing v. Bird, 100 So. 2d 57 (Fla. 1958), as clarified in Crigger v. Florida Power Corporation, 436 So. 2d 937 (Fla. 5th DCA 1983), confirms that the following elements are necessary to establish a prescriptive easement under Florida law:

1) The user has made a certain particular and actual use of lands owned by another;

2) Such use had been continuous and uninterrupted for a period of 20 years;

3) Such use has either been with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner;

4) Such use relates to a certain limited and defined area of land or, if for a right-of-way, the use is of a definite route with a reasonably certain line, width, and termini; and

5) Such use has been adverse to the owner; that is a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner; b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment; and c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made.

In that case, Downing had filed a lawsuit against Bird and the City of Homestead seeking removal of paving from a parcel of land that she alleged was owned by her. Downing claimed that the city and Bird had constructed an asphalt road upon her property without her permission and that, when her husband had constructed a barrier across the road, he had been arrested. Downing requested that the defendants be required to remove the encroachment and that she be awarded damages and other relief. One of the defenses raised by the city was that it had acquired a prescriptive easement with respect to the disputed property.

The Downing court reasoned that the modern trend is to treat the acquisition of prescriptive rights as being rights acquired by methods substantially similar to those by which title is acquired by adverse possession. The court further noted that in either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition, the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. "In both rights, the use or possession must be inconsistent with the owner's use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner had a right to a legal action to stop it, such as an action for trespass or ejectment." (1) "Also, the limits, location, and extent of his occupation must be definitely and clearly established by affirmative proof and cannot be established or extended by presumption." (2)

The court further explained that:

[I]t was necessary for the defendants to allege and, by clear and positive proof, to prove: (1) that the public had the continued and uninterrupted use or enjoyment of the plaintiff's lands for a roadway for a period of at least 20 years prior to the barricading thereof, (2) the identity of the roadway, i.e., its route, termini and width, and (3) that the use or enjoyment was adverse or under a claim of right. (3)

Because the city's answer did not allege that the use by the public was adverse, the court reversed the trial court's finding in favor of the city but suggested that the city be given the opportunity to amend its answer. The court further noted that the answer did not properly identify the route, termini, location, and width of easement claimed by the city. Finally, the court found that "there is nothing to show that the use made by the public was inconsistent with the rights of the owner to his use and enjoyment in the land, which supports rather than overcomes the presumption that any such use was permissive." (4)

In reaching its decision, the Downing court focused on the character of...