A Prescriptive Easement is a lot like taking over land, or some other Easement interest in land, from somebody else. At first glance, many people equate Prescriptive Easements to nothing more than stealing, but a better understanding of what is required to establish a Prescriptive Easement and why we even allow them usually dispels that feeling. A Prescriptive Easement is defined as an Easement created from an open, adverse, and continuous use over a statutory period, which in Minnesota is 15 years. This definition may look like gibberish, but it effectively makes it very difficult to get a Prescriptive Easement over someone else’s property.
For starters, if you want to establish a Prescriptive Easement over someone else’s property, you have to be using the property in some normal kind of Easement way. Generally, courts will allow Prescriptive Easements to arise for Affirmative Easement situations, like a pathway, driveway extension, garden, etc. Courts, however, are not willing to allow Negative Easements to arise by prescription, such as requiring your neighbor not to do something like burn leaves or operate an ostrich farm. Also, courts will not grant Prescriptive Easement rights to someone who is claiming an Easement that could otherwise be classified as an Easement by Necessity. As far as the courts are concerned, as long as the necessity exists, there can be no Prescriptive Easement. Finally, courts will rarely, if ever, grant a Prescriptive Easement in situations where the Easement is over public land.
As an example, assume that you have a driveway on the edge of your property that runs alongside your neighbor’s property that happens to have been put in place on what you thought was the border but turned out to be five feet on to your neighbor’s side. This use must be open and notorious. What this means is that you cannot conceal your claimed Easement from everyone, especially the property owner. So, running across the back of your neighbor’s yard at 3:00 am and only when you know for a fact that the neighbors are out of town and could not possibly find you out, would probably not count as an open and notorious use. Our example of the driveway, however, is rather apparent to everyone. It is also important to note that just because the claimed Easement is not above the ground, does not mean that the Easement is not open and notorious. Courts have often held that where a reasonable inspection would have revealed the use, like a buried pipeline or electrical line, the Easement is open and notorious.
The next important qualification to establish a Prescriptive Easement is that the use must be adverse. What this means is that the use must be done without permission from the owner. So, in our example of the driveway along the border of yours and your neighbor’s properties, your neighbor cannot tell you that she knows that part of the driveway is on her land, but that it is ok for you to keep the driveway there. If your neighbor does this, then she has given you permission, and your claim is no longer adverse to her interest. This does not mean, however, that your neighbor would have to know about your use, only that they cannot have given you permission.
Finally, the use has to be continuous for the statutory period, which in Minnesota is 15 years. Continuous use does not necessarily mean that it has to occur every day or even every week. In other words, continuous is not the same as constant. When it comes down to it, a court will most likely have to decide whether or not a use occurs often enough to be considered continuous. In our example of a driveway along your property border with your neighbor, the use would most definitely be continuous, as the driveway is there every minute of every day, and you most likely use it on a relatively regular basis. Thus, if you put in a driveway on what you thought was your land, but that later turned out to be your neighbor’s land, and use the driveway for 15 or more years, odds are that you have gained a Prescriptive Easement in that portion of your neighbor’s land that the driveway sits on.