Civil Engineering Reference
In-Depth Information
The same elements of adverse possession, actual, open and notorious, hostile and con-
tinuous are applicable to establishing prescription. One difference is exclusivity. An
easement is by definition the limited use of the land of another person. Unlike adverse
possession, the property owners may continue to use their land. So long as the adverse
use by the claimant is not interfered with by the property owner, the claim continues
to accrue. For example, suppose that A owns land and that A's abutter B, begins walk-
ing across A's lawn as a shortcut to a neighbor's house. The weekly practice by A of
cutting his lawn over the same location which is used by B as a foot path will not
defeat B's claim of prescription. B's use of the land needn't be exclusive. Cutting the
lawn would however prevent B from having a valid claim for adverse possession of
the footpath. To make that claim, B's possession would have to be exclusive.
In prescription, the location of the use must be in a reasonably fixed area. For
example if a person were claiming prescription to establish a right of way over a
large field, the user could not move the location of the way to different parts of the
field from one year to another.
The scope of an easement by prescription is limited to the type of use which
was made during the prescriptive period. For example if a prescriptive easement
were created by walking across the abutter's property, the easement would not per-
mit the holder to drive vehicles over the land.
Tacking is also applicable to prescription. In adverse possession, the possessor
claims an exclusive occupation of the land. In prescription, the claimant only uses
the land. There are judicial decisions which hold that for tacking to be applicable
in prescription, the use of the land by the current claimant must be substantially
similar to that of the prior user. This requirement would seem to have no applica-
bility in adverse possession because the possession is exclusive so the type of use
is usually not a factor.
18.6 Easement Implied from Necessity
The following easements result from
Implication
. Implication means that although
the instrument did not specifically call for the easement, it was implied. The lan-
guage in a conveyance need not make any reference to the easement for it to exist.
Circumstances surrounding the conveyance imply the existence of an easement.
An easement Implied from Necessity is created when a common grantor creates
a landlocked parcel of land from a larger parcel having access, and the landlocked
parcel is conveyed to a person having no other access. For example, suppose the
land labeled 1 and 2 in Fig.
18.3
is owned by A as a single parcel of land. The
property has frontage on Perseverance Way, a public road. The land is bounded by
stone walls and by property belonging to Mr. John A. Butter. There is an unbroken
stone wall running east and west across the middle. A conveys the northerly por-
tion of the property to B. The land is now divided into two parcels labeled 1 and 2.
The deed makes no mention of a right of way (easement) from parcel 2 over parcel
1 to Perseverance Way. Without an easement over parcel 1, the owner of parcel 2
will have no access to the land.
