Easements by Prescription -- What Are They and How Are They Created?

An easement by prescription is an easement that arises from the continuous use of another's property without the landowner's consent. Prescription easements are created in a similar manner as title to land is acquired by adverse possession, and the requirements are similar.

The major differences between prescrptive easements an adverse possession is that adverse possession requires continuous possession of the property, while a prescriptive easement only requires continuous use. Also, unlike adverse possession, use of a prescroptive easement never matures into title to the property.

An easement by prescription rests on the claimant's adverse actions under a color of right. Mack v. Landry, 22 S.W.3d 524, 531 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (citing Scott v.. Cannon, 959 S.W.2d 712, 721 (Tex.App.-Austin 1998, pet. denied)). “A person acquires a prescriptive easement by the open, notorious, continuous, exclusive, and adverse use of someone else's land for ten years.” See id. (citing Brooks v. Jones, 578 S .W.2d 669, 673 (Tex.1979)). “The hostile and adverse character of the use necessary to establish an easement by prescription is the same as that which is necessary to establish title by adverse possession.” Id. (citing Othen v. Rosier, 148 Tex. 485, 226 S.W.2d 622, 626 (1950)). In determining whether a claim is hostile, Courts consider “whether the adverse possessor's use, occupancy, and possession of the land is of such nature and character as to notify the true owner that the claimant is asserting a hostile claim to the land.” Id.

It has been said that 5 requirements or elements must be met to create a prescriptive easement, and the absence or failure of any one element is fatal. The elements are as follows:

1. use of the easement must begin and continue without the consent of the landowner.
2. use must be open, obvious and apparent
3. use must be exclusive
4. use must be in the same place or with indefinite lines; and
5. use must be continuous and un-interrupted for ten years.

If your property is landlocked by recent actions of a neighboring landowner, you may be entitled to judicial declaration that an easement by prescription exists. If faced with this situation, you should contact an experienced real estate attorney. Trey Wilson is an attorney in San Antonio, Texas, whose practice emphasizes real estate law, construction law, evictions, and water law. He may be reached at 210-223-4100 or www.sa-law.com