April 12, 2011
A prescriptive easement is analogous to adverse possession, the difference being that in a prescriptive easement claim, the claimant acquires only an easement rather than title to the land. See 28A C.J.S. Easements § 23 (Westlaw database updated Mar. 2011); Cumulus Broad. v. Shim, 226 S.W.3d 366, 378-79 (Tenn. 2007).
As with adverse possession, a party asserting a prescriptive easement must generally prove, by clear and convincing evidence, adverse use that is visible, open, and notorious, as well as continuous and uninterrupted for the statutory prescriptive period. See 28A C.J.S., supra, § 23; 25 Am. Jur. 2d Easements and Licenses § 39 (Westlaw database updated Nov. 2010); Hilley v. Lawrence, 972 A.2d 643, 651-52 (R.I. 2009); Shapiro Bros. v. Jones‑Festus Props., 205 S.W.3d 270, 274 (Mo. Ct. App. 2006).
The existence of prescriptive easements and the requisite elements to establish them have long been plainly set forth in the law; however, there is scant legal precedent regarding the acquisition of prescriptive easements by an identified class of persons as opposed to an individual or the public generally. See Flaherty v. Muther, 2011 ME 32, ¶¶ 80-83, 2011 WL 990308, at *16 (not yet released for publication).
Clearly, there is nothing inherent in the law to preclude a distinct class of persons from acquiring an easement by prescription. See Me. Rev. Stat. Ann. tit. 14, § 812 ("No person, class of persons or the public shall acquire a right-of-way or other easement through, in, upon or over the land of another by the adverse use and enjoyment thereof, unless it is continued uninterruptedly for 20 years." (emphasis added)); 17 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate § 2:7 (2d ed. 2004 & Supp. 2010) (recognizing that, under Washington law, an identifiable group of persons may establish a prescriptive easement to be used among themselves); e.g., Cordrey v. Dorey, Civ. Act. No. 1519‑S, 1996 WL 633293, at *4 (Del. Ch. Oct. 4, 1996) (unpublished) (concluding that several neighbors acquired the same prescriptive easement); Hunt v. Armstrong, No. 127173, 1989 WL 1183112, at *4 (Mass. Land Ct. Sept. 12, 1989) (same).
Yet "[t]he law does not favor prescriptive easements, and a party claiming the existence of one must show the elements by clear and convincing evidence." 28A C.J.S., supra, § 23; accord 25 Am. Jur. 2d, supra, § 39 (same); Hilley, 972 A.2d at 651-52; Shapiro Bros., 205 S.W.3d at 274. So it should come as no surprise, then, that each and every person within the identified group or class must prove all of the requisite elements of the claim for a prescriptive easement.
Consequently, one person in the class cannot rely upon or otherwise impute to himself or herself another class member's use. See, e.g., Flaherty, 2011 ME 32, ¶¶ 84-85, 2011 WL 990308, at *17 (as a matter of first impression, adverse use of alleged prescriptive easement by only a few neighbors did not inure to benefit of other similarly situated neighbors who, although named parties in the lawsuit, did not in fact use the alleged easement); Cordrey, 1996 WL 633293, at *4 ("Because [the claimants] presented their [prescriptive easement] claim largely in terms of their own personal use, the evidence is insufficient to support a finding that easement rights exist in a broader class of persons.").
Of course, as suggested above, upon sufficient evidence that a broader group of persons did in fact adversely use the asserted easement and otherwise satisfied the requisites of a prescriptive easement, then a correspondingly broader prescriptive easement can be established. See Cordrey, 1996 WL 633293, at *4.
Moreover, each person in the group or class must on his or her own accord satisfy the requirements of uninterrupted and continuous use for the prescriptive period. See, e.g., id. ("Mr. Charles Purnell's use was from 1964 to 1991; Mrs. Colebourn's use was from 1948 to 1981; [and] Mr. Cordrey's use was from the 1950s to 1970s."). The doctrine of tacking successive prescriptive periods together to establish continuous use may apply to concurrent users within a class. See, e.g., id. ("Mr. Wagner's use (from 1983 to 1988) may be 'tacked on' to the use of his predecessor in title . . . who purchased their lot in the 1930s and used the disputed area . . . until they sold their land to Mr. Wagner."). However, a prerequisite to tacking-on in the group context is privity of title. See Flaherty, 2011 ME 32, ¶ 81, 2011 WL 990308, at *16; see, e.g., id. ¶ 82, 2011 WL 990308, at *16-17 ("[U]se by three households—one for twenty years, one for ten years, and one for one year—is [not] sufficient to establish a prescriptive easement for a class of nineteen households [which are not in privity].").
Finally, at least some states' formulations of the prima facie case for prescriptive easement include an element of exclusivity. See, e.g., Cumulus Broad., 226 S.W.3d at 379; Clark v. Heirs & Devisees of Dwyer, 2007 MT 237, ¶ 25, 170 P.3d 927, 932; State v. Beeson, 232 S.W.3d 265, 274-75 (Tex. App. 2007). On its face, such an element would seem to be an impediment to the acquisition of prescriptive rights by a group of persons. However, this element merely highlights the distinction between adverse possession and prescriptive easement.
In the former case the possession must be exclusive, since two persons (not joint owners) cannot at the same time possess the same parcel of land, unless the right of one is subordinate to that of the other. In the latter case both parties may exercise the right to use a single way; each user being independent of the other and exercised as of right. That the user must be exclusive is true only in the limited sense that the right shall not depend for its enjoyment upon a similar right in others; it must be exclusive as against the community at large.
Phillips v. Bonadies, 136 A. 684, 686 (Conn. 1927). Consequently, "two or more persons may independently acquire an easement by prescription to use the same road or way, and the easement may be acquired in common with the true owner." Cordrey, 1996 WL 633293, at *4 (citing Marta v. Trincia, 22 A.2d 519, 520 (Del. Ch. 1941)).