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Prescriptive Easement Akin to Adverse Possession

WHAT IS A PRESCRIPTIVE EASEMENT?

A prescriptive easement (or easement by prescription) is a right of access over another’s property acquired through the claimant’s adverse actions taken “under color of law.” The adverse actions must persist continuously for at least 10 years.

Like other implied easements, easements by prescription are not contained in any written conveyance. Instead, they are “implied” based upon the conduct of the easement claimant and the party resisting the easement.  Prescriptive easements are one exception to the general rule (statute of frauds) that conveyances of real estate interests must be in writing.

PRESCRIPTIVE EASEMENT VERY SIMILAR TO ADVERSE POSSESSION

Texas courts have analyzed acquisition of prescriptive easements as analogous to acquiring title by adverse possession. Accordingly, a claim of prescription must be supported by proof of all of the elements that are involved in the statute of limitations for adverse possession. Harrington v. Dawson-Conway Ranch, Ltd., 372 S.W.3d 711, 718 (Tex. App.-Eastland 2012, pet. denied).

ESSENTIAL ELEMENTS OF EASEMENT BY PRESCRIPTION

“To obtain a prescriptive easement one must use someone else’s land in a manner that is open, notorious, continuous, exclusive, and adverse for the requisite period of time.” Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979). The absence of any of these elements is fatal to the claim of a prescriptive easement.

The party claiming an easement by prescription must give notice that its use of property is under a claim of right. Establishing that the use is adverse and hostile requires the claimant take open action to obtain a permanent right to use the property, not merely to obtain permission to do so. See Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987).

CONSENT KILLS HOSTILITY

If permission to use a property is granted, the claim cannot be adverse absent notice of the hostile nature of the claimant’s possession. Wright v. Wallace, 700 S.W.2d 269, 271 (Tex. App.-Corpus Christi 1985, writ ref’d n.r.e.). Otherwise, the use (especially if joint) is presumed to be permissive, and a permissive use can never ripen into an easement by prescription.  Sassman v. Collins, 53 Tex.Civ.App. 71, 115 S.W. 337, 339 (1908, writ ref’d).  Instead, there must be an independent act of hostility to transform permissive use of an easement into an adverse use so as to begin the prescriptive period. Mack v. Landry, 22 S.W.3d 524, 532 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

One test to determine whether a claim is hostile as required to establish an easement by prescription is whether the adverse possessor’s use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.  Mack, 22 S.W.3d at 531.

SHARED OR JOINT USE OF A ROADWAY KILLS EXCLUSIVITY

The easement “claimant must exclude, or attempt to exclude, all other persons, including the property owner[,] from using the roadway.”  Stallman v. Newman, 9 S.W.3d 243, 249 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).Exclusivity is not met when landowner and claimant both use the road. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987). Joint use of a road, no matter for how long, cannot ripen into an easement by prescription. Vrazel, 725 S.W.2d at 711; Othen v. Rosier, 226 S.W.2d 622, 626 (1950). Mere joint use, without more, will not establish a prescriptive easement. Tiller, 96 S.W.3d at 624.

The easement “claimant must exclude, or attempt to exclude, all other persons, including the property owner[,] from using the roadway.”  Stallman v. Newman, 9 S.W.3d 243, 249 (Tex. App.-Houston [14th Dist.] 1999, pet. denied).Exclusivity is not met when landowner and claimant both use the road. Vrazel v. Skrabanek, 725 S.W.2d 709, 711 (Tex. 1987). See also, Brooks, 578 S.W.2d at 673 (“When a landowner and a claimant of an easement both use the same road, use by the claimant is not exclusive to the landowner’s use and is not adverse.”); see also,  Allen, 280 S.W.3d at 377 (“When the property owner and the claimant of the easement both use the property, the claimant’s use is not exclusive of the owner’s use and, thus, is not considered adverse.”); Mack, 22 S.W.3d at 532 (“Joint continuous use, without a legally adverse or hostile act, is not sufficient.”).

TAKEAWAY

Implied easement cases are intensely fact-specific. Given the 10 year limitations period, facts establishing or defeating the existence of the essential elements often occurred at a time when the affected property was owned by another. This lack of personal knowledge results in research-intensive cases.

If your legal situation involves a claim for easement by prescription, you should contact an experienced real estate lawyer.