REAL ESTATE 23: Plaintiff did not have an express easement or prescriptive easement.

Defendant and plaintiff own property adjacent to each other.  No official road borders plaintiff’s property. Plaintiff and her family accessed their parcel via a two-track trail that ran across defendant’s southwest corner of his property, and ended on plaintiff’s property. Multiple witnesses testified that there was no other way to access plaintiff’s property other than the two track. This dispute centers on whether plaintiff and her family hold an easement, express or prescriptive, to traverse over defendant’s southwest property via this two-track.

Plaintiff, her parents, and plaintiff’s siblings utilized their property regularly over the decades. To access their property, they utilized the two-track that ran across defendant’s property. Defendant testified that he gave plaintiff’s brother permission over the years to use the two-track to check in on the property; however, defendant testified that he never gave plaintiff or the other members of her family permission.

In the early 2000s, defendant placed a gate across the two-track, but he gave plaintiff’s brother a key and continued to grant him permission. Finally, in 2016, after finding evidence of strangers and damage on his property, defendant placed another lock on the gate and refused to give plaintiff’s brother another key.  The law suit followed.

In order to create an express easement, there must be language in the writing manifesting a clear intent to create a servitude. In reviewing other deeds in the record, the easement was extinguished, so no express easement could have transferred with the land.

An easement by prescription results from use of another’s property that is open, notorious, adverse, and continuous for a period of fifteen years. The burden is on the party claiming a prescriptive easement to show by satisfactory proof that the use of the defendant’s property was of such a character and continued for such a length of time that it ripened into a prescriptive easement.

While there was testimony to show that plaintiff and her family used the two-track, plaintiff testified that during her first visit to the property, she was unaware of who even owned the two-track. There was no evidence to show or suggest that plaintiff subsequently placed defendant on notice of a claim of use. There was no evidence establishing that plaintiff or her family told defendant that they claimed a right of way. While mere usage would ordinarily be enough to satisfy the adversity requirement, the heightened standards for wild and unenclosed land require more. In this case, the record supports that defendant’s property was wild and unenclosed.  Therefore, plaintiffs did not have a prescriptive easement over defendant’s property.

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