Establishing A Prescriptive Easement

You’ve been using your neighbor’s private road to access a piece of pasture land for as long as you can remember. For one reason or another (flooding, erosion, etc.), your neighbor’s road is the only reasonable access you have to your pasture land. Your neighbor sells the property to a new owner who is not so friendly. The new owner has now cut off your use of the road and therefore made accessing your pasture land difficult or impossible. What steps can you take from here to regain access to your pasture land?

Factors

A possible remedy is a claim for a prescriptive easement through a quiet title action.

In North Dakota, an easement by prescription is created by use that is “…adverse, continuous and uninterrupted, and for the 20 year period of prescription” Fischer v. Berger, 2006 ND 48. For a prescriptive easement to be created, all three of the above factors must be satisfied, not just one or two.

Adverse Use

The first question to ask is, “Was my use adverse?”An adverse use is a use that is adverse to the interest of the property owner. Technically, your use is a trespass on your neighbor’s private road even though he may have never expressed displeasure in your trespass.

Because your use has been a trespass, using your neighbor’s road to access your pasture would be a good example of an adverse use.

Continuous And Uninterrupted

Next, we need to ask, “ Was the use ‘continuous and uninterrupted’?” Continuous and uninterrupted use does not necessarily mean that the easement road’s use is constant. There is not a specific number of days per week you are required to use the road, nor must you utilize it every week. Instead, when you access your pasture land, you should be using the easement road. Put differently, the easement road should be the primary way you access your pasture land, as opposed to sporadic use.

A good way to illustrate this concept is to ask, “For the period of time you were using your neighbor’s road, did you always use your neighbor’s road, or did you take alternate routes at some point in between?” If you used many different routes to access your pasture, then it will be difficult to show that your use was continuous and uninterrupted. Also, if you have alternative routes to access your pasture land, a prescriptive easement is probably not necessary.

Therefore, if, from the time you began using your neighbor’s road to the time the new property owner required you to quit using the road, you did not use other routes to access your pasture, your use would have been continuous and uninterrupted.

Time Period

Finally, the use must be for a period of at least 20 years. This requirement is straightforward but also important. To succeed in your quiet title action, you must show that the adverse, continuous, and uninterrupted use has been occurring for 20 years. If the new property owner decides to oust you from the use of the road after 19 years of use, you will not have satisfied the requirements to prove a prescriptive easement exists.