John Lovett, ‘Restating the Law of Prescriptive Easements’

Prescriptive easements form an important but often overlooked building block in the architecture of property law. Prescription, the doctrine that allows a long-term user of another’s land to acquire a prescriptive easement burdening that land without compensating the owner, transforms a trespass into a permanent property right good against the world. Of all the elements of prescription, adverse use or adversity is often the most intensely disputed and often proves to be outcome determinative. Given its importance to prescriptive easement claims, courts have developed a number of presumptions to frame their analysis of the adversity element. For many years, leading treatise writers have advised that if a prescriptive easement claimant establishes that otherwise unexplained use of another’s land has occurred in an open and notorious manner and continued without interruption for the statutory prescription period, the claimant’s use is presumed to have been adverse to the owner. The same leading authorities acknowledge that a minority of courts employ the opposite presumption – that otherwise unexplained use is presumed to be permissive.

It turns out that the vast majority of US courts employ a hybrid approach to this question, starting with a presumption of adverse use but then applying counter-presumptions of permissive use in a number of special circumstances. This Article urges the reporters currently preparing the Restatement of the Law Fourth Property (Restatement Fourth) to institutionalize this hybrid approach and fashion a black letter rule that mirrors the dominant judicial practice. In support of this position, this Article first reviews previous Restatement attempts to clarify the law of prescriptive easements. Next, it analyzes academic scholarship that has defended prescription and its doctrinal cousin, adverse possession, called for their abolition, or advocated for their reform. Finally, this Article offers a detailed discussion of relevant case law in all fifty states and explains why the hybrid approach, what this Article calls the Presumption of Adverse Use with Specialized Exceptions (the PAUSE approach), is consistent with many of the institutional goals of the Restatement Fourth reporters, especially their aim to articulate relatively invariant property rules and yet identify appropriate places for property law to be responsive to context, social norms, and customs.

Lovett, John A, Restating the Law of Prescriptive Easements (June 9, 2021). 104 Marquette Law Review 939 (2021), Loyola University New Orleans College of Law Research Paper No 2021-03.

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