Proof for Prescriptive Easement Same as Adverse Possession

                        
                            San Antonio real Estate Attorney                         
                    

HOW IS AN  EASEMENT BY PRESCRIPTION ACQUIRED?

A person can acquire a prescriptive easement if he uses someone else’s land in a manner that is adverse, open and notorious, continuous, and exclusive for the requisite ten-year period. Brooks v. Jones, 578 S.W.2d 669, 673 (Tex. 1979); TEX. CIV. PRAC. & REM. CODE § 16.026.

BURDEN OF PROOF

The burden is on the party claiming the easement rights to establish all necessary facts. Brooks, 578 S.W.2d at 673.

ADVERSE USE OF EASEMENT IS THE SAME AS IS NECESSARY TO ESTABLISH TITLE BY ADVERSE POSSESSION

The adverse use necessary to establish a prescriptive easement is the same adversity of use necessary to establish title by adverse
possession. Boerschig v. Sw. Holdings, Inc., 322 S.W.3d 752, 766 (Tex. App.—El Paso 2010, no pet.).

As such, the dominant estate holder’s use must be of such a nature and character that it notifies the servient estate holder that the claimant is asserting a hostile claim. Brooks, 578 S.W.2d at 673; see also Tiller v. Lake Alexander Props., Ltd., 96 S.W.3d
617, 624 (Tex. App.—Texarkana 2002, no pet.).

Use is open and notorious when the servient owner has actual or implied notice of the use. Evans v. Scott, 83 S.W. 874, 876 (Tex. Civ. App. 1904, no writ).

Finally, the use must be exclusive; when a landowner and the claimant of an easement “both use the same way,” the claimant’s use is not exclusive and is thus insufficient to establish a prescriptive easement. Brooks, 578 S.W.2d at 673.

PRESCRIPTIVE EASEMENTS RUN WITH THE LAND

An easement entitling an adjacent landowner to cross over an adjoining tract of land—also called a “way easement”—is an easement appurtenant to the land; the easement attaches to the land itself and conveys with the dominant estate. See Drye v. Eagle Rock Ranch, Inc., 364 S.W.2d 196, 203 (Tex. 1962).

Because way easements—including those acquired by prescription—are easements appurtenant, they run with the land until
terminated. See Drye, 364 S.W.2d at 207. So, once established, the way easement allows the successors in interest to the dominant estate to continue crossing the servient estate along the established way. Id.

HOW DO APPURTENANT EASEMENTS EXPIRE?

Easements appurtenant can terminate by merger of the dominant and servient estates, abandonment, prescription, or failure of purpose. RESTATEMENT (THIRD) PROPERTY: SERVITUDES § 5.1 cmt. a (AM. L. INST. 2023).

 

For more reading see the Texas Supreme Court opinion in POLK COUNTY PUBLISHING COMPANY AND VALERIE REDDELL v. TOMMY LAMAR COLEMAN; from Polk County; 9th Court of Appeals District (09-20-00298-CV, 668 SW3d 385, 12-30-21).