Section 15 Prescription

• Library: Real Estate Fundamentals 2011

An easement acquired by prescription is like adverse possession of property and is established by use that is all of the following for at least ten years:

· Continuous

· Uninterrupted

· Open

· Visible

· Adverse

· Under a claim of right

For an elaboration of the above elements of prescription and a description of the quantum of proof necessary for each element, see:

· Watson v. Mense, 298 S.W.3d 521 (Mo. banc 2009)

· Whittom v. Alexander-Richardson P’ship, 851 S.W.2d 504, 508 (Mo. banc 1993)

· Flowers v. Roberts, 979 S.W.2d 465 (Mo. App. E.D. 1998)

· Underwood v. Hash, 67 S.W.3d 770 (Mo. App. S.D. 2002)

See also Speer v. Carr, 429 S.W.2d 266, 268 (Mo. 1968); Spier v. Brewer, 958 S.W.2d 83, 86 (Mo. App. E.D. 1997).

A long, continued use alone will not create a prescriptive right. Spier, 958 S.W.2d at 86. For use to be considered adverse, the user does not have to intend to violate the rights of the owner as long as the user uses the land without regard to any right of the owner to permit or prohibit the use. Phillips v. Sommerer, 917 S.W.2d 636, 641 (Mo. App. W.D. 1996). Occasional entries or temporary use or occupation will not suffice to establish adverse use. Id.; see also Brown v. Evans, 182 S.W.2d 580, 583 (Mo. 1944). For a use to be continuous, a constant use is not required, but the essential attitude about the use must be continuous. Smith v. Chamblin Props., LLC, 201 S.W.3d 582, 587 (Mo. App. W.D. 2006).

The party claiming the adverse use can take advantage of “tacking” the use of a prior owner, but the party must prove that the prior owner’s use was also adverse. Brick House Cafe & Pub, L.L.C. v. Callahan, 151 S.W.3d 838 (Mo. App. W.D...