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Easements often created by use

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Washington law has long recognized the creation of easements by use, despite no express grant of easement rights (i.e. no written, signed, and recorded instrument creating an easement).

Use easements, often referred to as prescriptive easements, require the party asserting the easement to prove to the court that the use of another’s land continued for 10 years and the use was (1) actual over a uniform route, (2) open and notorious, (3) hostile, (4) continuous, and (5) exclusive.

Actual use over a uniform route requires the physical use of another’s land.

It must also be the kind of use one would make of an easement, whether for walking, driving, utility lines, or otherwise. The nature of the use defines the scope of the prescription easement and its location.

Open and notorious use requires the use of another’s land to not be concealed. The use must be reasonably discoverable by an owner, who is charged with being aware of unpermitted uses of the owner’s land.

Surface uses, such as roads or above-ground utility lines, are examples of notoriousness.

The hostility requirement is often debated in prescriptive easement cases.

Hostility means the prescriptive use was without the owner’s permission. If the hostile use continues for 10 years, what was once an unlawful trespass ripens into an enforceable easement right.

An owner may attempt to block prescription by granting the adverse claimant permission to use the owner’s land.

The unilateral grant of permission where none is first sought, however, may not provide a defense.

Granting unsought permission may not change hostile use to permissive use. For example, posting a sign granting permission to use land may not stop the acquisition of prescriptive rights.

The owner may have to physically block the use (e.g. build a fence) or file suit, if the adverse user will not agree the use is permissive. Agreements for permissive use (e.g. a license or lease) are best documented in a signed writing.

Washington law sometimes presumes permission exists, despite no express grant.

A court may presume permission when the use is over vacant and unenclosed land.

The party alleging an easement to vacant land must produce evidence of hostility beyond mere use.

The law may also infer permissive use when the use is for neighborly accommodation.

This most often results when the adverse use is between close friends or family members. If a court finds the use between close friends or family to be permissive, it means there was no period of hostile use and the use could not ripen into a prescriptive easement.

Prescription also requires that the use be “continuous” or “uninterrupted.”

This requires that the usage be as continuous as would be normal if the adverse claimant had a rightful easement.

This typically means that the use must be repeated over the 10 year prescription period, but does not necessarily require the use to be a daily event, or occur on any particular schedule. The seasonal use of high-mountain grazing lands could be found continuous use, for instance.

Interrupting adverse use is a potential means to stop prescriptive rights.

However, minor or isolated interruptions may not be enough, and a property owner may need to document any interruptions in hostile use, and make sure the interruptions are significant, obvious, and prevent actual use. For instance, deliberately blocking a road for a sufficient length of time should interrupt the 10 year period required to acquire prescriptive rights.

The exclusive use element does not necessarily require that there are no other users of the land in question.

Exclusive use typically need only be as one would consider normal for a true easement holder to make under the same circumstances.

Because easement rights typically do not permit the easement holder to exclude others, the use of a claimed easement by the owner, or even by third parties, may not prevent a prescriptive use claim.

Prescriptive easement claims are common in Chelan County and Douglas County, especially around recreational water (e.g. Lake Chelan) or after the development of former orchard or farm property.

Real property sellers and purchasers should be cautious when dealing with potential prescriptive easement claims, and property owners should remain vigilant about and address third party use.

To stop a trespass from ripening into a prescriptive right, a property owner may have to physically block the hostile use or secure a court order. Another option is to enter into a permissive use agreement with the user.

Brian A. Walker helps businesses and individuals with commercial, business, employment, and real estate litigation and transactions from the Wenatchee offices of Ogden Murphy Wallace PLLC.