We’ve discussed easements for the past two weeks, particularly the importance of having a a written document and a clear description. Those needs arise only with express easements—when a property owner expressly grants the easement over part of her property in writing.
Some easements are legal creations without an express grant. A prescriptive easement arises when the one party claims a right to use another’s property in an open, notorious, continuous, and adverse way.
Think of adverse possession, or squatting, where someone claims legal title to property because they have openly and exclusively possessed it for a sufficient period of time. Prescriptive easements claim permitted use, not exclusive possession. It’s important to remember that easements are the permitted use of another’s property—not the ownership of it.
Prescriptive easement claims an interest in property for a specific use that has been going on for many years (15 in Michigan, but states differ on the time requirement). This is not in writing. In fact, the property owner specifically does not grant permission to use the claimed easement, but rather acquiesces to its use by remaining silent and/or by not interfering with it.
A prescriptive easement is “no more than an unopposed, continuous trespass [on another’s property] for 15 years.” McDonald v. Sargent, 308 Mich 341, 344-45 (1944).
A prescriptive easement in Michigan requires:
- The continued and uninterrupted use of another’s land for at least 15 years.
- Identity of the thing enjoyed (meaning the land use is a known, quantifiable part of another’s land).
- A claim of right adverse to the owner.
Adversity or hostility to the rights of the true owner does not imply ill will. In fact, the use must be open, peaceable, and continuous. The use must be inconsistent, however, with the owner’s rights. The use is without permission asked or given, as if the owner would have the right to claim trespass or nuisance.
As for continuity, Michigan allows a party claiming prescriptive easement to batch its period of ownership with its predecessors, provided it can prove privity of contract between each owner, and provided the use was continuous for at least 15 years.
This often arises on lakes. An express easement to get to the water is contained in a deed, but the landlocked property owner and its successors don’t use the easement just to get to the lake. They use the easement for recreation, not just access. They also build a dock and moor boats. When a subsequent owner claims trespass and nuisance, they claim prescriptive easement and win. Astemborski v. Manetta and Scott, et al., unpublished per curiam opinion of the Court of Appeals, issued March 17, 2022 (Docket No. 352066).
In another interesting case, truly landlocked property owners could only access their land by walking either across private property or state property. They used a two-lane track on the state property as far as they could, and then they put down wooden pallets across wetlands to access their property. The Michigan Court of Appeals found that they had established a prescriptive easement across the state property, as all the elements were met. Matthews v. Natural Resources Dept, 228 Mich App 676; 619 NW2d 725 (2000). It’s important to note that a subsequent statute prohibits claims of adverse possession or prescriptive easement as to state-owned property, but the 15 years of continuous use preceded its effective date. The Court of Appeals also required the landlocked owners to follow the state’s permitting procedures for use of certain materials on wetlands.
To protect your interests, you should seek legal counsel in any real property dispute. Contact the attorneys at Dalton & Tomich to discuss your prescriptive easement issue, regardless of which side of the easement claim you’re on.
NB: This article does not constitute legal advice and does not create an attorney-client relationship with any reader(s).
