Public Right of Way or Prescriptive Easement?

He should put up a sign giving g permission to visit, along with an "at your own risk" notice.

California has the Civil Code 1008 signs which prevent an easement from being established.

Posted by: @bill93

He should put up a sign giving g permission to visit, along with an "at your own risk" notice.

That would prevent any prescriptive claims from ripening in most any state, I would think. It removes the "hostile" aspect of the statutory requirements.

Massachusetts in particular has a statute protecting a landowner from liability for injuries if he permits the public to use his land for recreation without charging a fee. It does not specifically address prescriptive easements, but I as noted above, giving permission eliminates "hostile" from the equation.

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Interesting situation.?ÿ I can't think of anything similar in Oklahoma save public access to ponds built by the Soil Conservation Service on private lands.

I have looked but cannot find anything specific.?ÿ But in the '30s and '40s the federal SCS program funded the construction of thousands of ponds in the state.?ÿ Although most of them are surrounded by private property the pond itself was constructed with public money and therefor owned by the public.?ÿ Property owners cannot exclude public access (fishing, etc.) to the pond although they may direct or confine access in deference to their agricultural interests.?ÿ It is legal for the property owner to charge for vehicle access to defray road maintenance cost.?ÿ But I've never ran upon anyone claiming a public easement or RW in this situation although it wouldn't surprise me.?ÿ I guess the public's access to these ponds exists but remains undefined.

I think the courts approach easements and prescriptive claims with a level of necessity in mind.?ÿ I would think that hiking a trail to take a selfie might not attain a level of necessity to the public.?ÿ Inversely I think the law might even consider the interest as an "attractive nuisance" and stand behind the owner should he want to bar access or even charge admission.?ÿ At any rate in Oklahoma permissive access (written or implied) usually blows any prescriptive claims out of the water.?ÿ

I remember a case in Oklahoma where a long-established trail existed across a parcel that was access to a land-locked 40 acre tract.?ÿ Several people had owned the land-locked parcel and all had used to trail as access.?ÿ A current owner wanted to divide the 40 acres into several tracts.?ÿ The owner of the property upon which the trail existed brought suit against the developer.?ÿ While it was determined that a prescriptive access easement did indeed exist, it was private and could not become public (for more than one owner) just because the owner wanted to develop the property.?ÿ This actually surprised me.?ÿ?ÿ

In this case the owner of the servient parcel eventually dedicated public access across his property after enough money changed hands..which was probably what the whole thing was about anyway.

Here is a case somewhat similar to the OP, except no one would walk in.?ÿ This site on private land is cut off through the Winter months, possibly as long as six months in some cases.?ÿ Otherwise, it is open to visitors.?ÿ This is along the Cimarron Cut-off of the Santa Fe Trail.?ÿ I have been there one time.?ÿ The local newspaper has a spot on the front page every week announcing whether it is open or closed.

https://www.nps.gov/places/autograph-rock.htm

Posted by: @paden-cash

While it was determined that a prescriptive access easement did indeed exist, it was private and could not become public (for more than one owner) just because the owner wanted to develop the property.?ÿ This actually surprised me.?ÿ

Paden,

From An Overview of Colorado Easement Law From Creation to Termination August / September 2020 By April D. Hendricks

Colorado courts have outlined a specific line of inquiry in determining the proper scope of an easement acquired by prescription. In Wright v. Horse Creek Ranches, the Colorado Supreme Court adopted the approach outlined in Restatement (First) of Property (Amer. Law Inst. 1944) ???? 477ƒ??479, which provide guidance for determining the scope of permissible uses for an easement acquired by prescription (Wright, 697 P.2d at 388). Restatement ?? 477 provides that ƒ??[t]he extent of an easement created by prescription is fixed by the use through which it was created.ƒ?
To determine whether a particular type of use is permissible under a prescriptive easement, the Wright Court looked to Restatement ?? 478, which advises that the claimed use must be compared with the original use of the easement ƒ??with respect to (a) their physical character, (b) their purpose, [and] (c) the relative burden caused by them upon the servient tenementƒ? (Wright, 697 P.2d at 389). In considering whether a subsequent use of the prescriptive easement constitutes an expansion of the original use, the Wright Court further looked to Restatement ?? 479, which provides that, in addition to the factors noted above, courts should consider the needs resulting from the normal evolution of the use of the dominant estate, balanced against the extent to which those needs increase the burden placed on the servient estate (Wright, 697 P.2d at 389). In weighing these factors, the Wright Court refused to permit the holder of a prescriptive easement acquired for agricultural use to subsequently use that easement for new residential and recreational uses (Wright, 697 P.2d at 390).

I run across something similar in Colorado with my mineral survey work. Just because there is an old ore-wagon road that crosses a patented mining property does not mean that someone with another purpose has a right to use that road. For example, someone wants to build a nice cabin on a patented mining claim. There is existing access to the property via an old road that was originally established to bring in equipment and haul out ore. The original use was for mining purposes. Does that limit the prescriptive use of the road to mining purposes only? Or does repurposing the property from mining to a cabin site with pretty views prevent the new owner from driving his Land Rover over the old mining road?

Posted by: @gene-kooper

I run across something similar in Colorado with my mineral survey work. Just because there is an old ore-wagon road that crosses a patented mining property does not mean that someone with another purpose has a right to use that road. For example, someone wants to build a nice cabin on a patented mining claim. There is existing access to the property via an old road that was originally established to bring in equipment and haul out ore. The original use was for mining purposes. Does that limit the prescriptive use of the road to mining purposes only? Or does repurposing the property from mining to a cabin site with pretty views prevent the new owner from driving his Land Rover over the old mining road?

Your example just fired up a bunch of questions in my mind. I'm not familiar with mining claims, but I always thought they only conferred a right to extract (and keep) ore and minerals from the ground. Does a "patented mining claim" also confer the right to build a residence, either as a first or secondary home? Is "patented" the equivalent of a fee ownership?

@peter-lothian Unpatented mining claims grant the claimant the possessory right to the mineral estate. It is very similar to fee title, except the U.S. government still retains title. By "patented mining claim" I mean the U.S. government issued a patent under the authority of the U.S. mining laws for the claim. It is fee ownership. As for whether you can build on it or not, that is up to the local government entity that has land use authority over the property.

@gene-kooper?ÿ

I was working at That county where the cartoon is named after and the now departed GIS Specialist and Department of Development director asked me " What do you know about prescriptive easement a...."

I just piped up, " for GIS, it's something to draw into a map that was adjudicated by a court after the lawsuits...."

They didn't think I was funny, and I left after a year of that monkey business anyway....

That county has all kinds of prescriptive easement issues and I'm sure you've seen lots of interesting things out and about up there in that rare air.

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????

Here is an excerpt from the Florida Bar.

ƒ??While the vast majority of easements typically encountered by a real estate attorney in their day-to-day practice are express easements, arising pursuant to written ƒ?? and, usually, recorded ƒ?? instruments between the owners of the dominant (benefited) and servient (burdened) parcels of property, easements may also be implied or otherwise arise pursuant to applicable facts and circumstances. Thus, while the existence of a prescriptive easement (or an easement by way of necessity, which will be addressed in a subsequent article) is unlikely to be disclosed by a standard title search (unless such an easement is subsequently confirmed by a recorded judgement or an express easement), a careful property inspection and a thorough survey may make the existence or potential claim of the existence of such an easement evident.

Prescriptive easements are often erroneously referenced as easements arising by adverse possession, and, while many elements of prescriptive easements are akin to adverse possession claims, there are significant differences. Also, unlike adverse possession claims (and ways of necessity), which originally arose under common law but have since been codified, there is no statutory basis for prescriptive easement claims; prescriptive easements continue to exist solely under common law.

The decision of the Florida Supreme Court in Downing v. Bird, 100 So. 2d 57 (Fla. 1958), as clarified in Crigger v. Florida Power Corporation, 436 So. 2d 937 (Fla. 5th DCA 1983), confirms that the following elements are necessary to establish a prescriptive easement under Florida law:

1) The user has made a certain particular and actual use of lands owned by another;

2) Such use had been continuous and uninterrupted for a period of 20 years;

3) Such use has either been with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner;

4) Such use relates to a certain limited and defined area of land or, if for a right-of-way, the use is of a definite route with a reasonably certain line, width, and termini; and

5) Such use has been adverse to the owner; that is a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner; b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment; and c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made.

In that case, Downing had filed a lawsuit against Bird and the City of Homestead seeking removal of paving from a parcel of land that she alleged was owned by her. Downing claimed that the city and Bird had constructed an asphalt road upon her property without her permission and that, when her husband had constructed a barrier across the road, he had been arrested. Downing requested that the defendants be required to remove the encroachment and that she be awarded damages and other relief. One of the defenses raised by the city was that it had acquired a prescriptive easement with respect to the disputed property.

The Downing court reasoned that the modern trend is to treat the acquisition of prescriptive rights as being rights acquired by methods substantially similar to those by which title is acquired by adverse possession. The court further noted that in either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition, the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. ƒ??In both rights, the use or possession must be inconsistent with the ownerƒ??s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner had a right to a legal action to stop it, such as an action for trespass or ejectment.ƒ?1 ƒ??Also, the limits, location, and extent of his occupation must be definitely and clearly established by affirmative proof and cannot be established or extended by presumption.ƒ?2

The court further explained that:

t was necessary for the defendants to allege and, by clear and positive proof, to prove: (1) that the public had the continued and uninterrupted use or enjoyment of the plaintiffƒ??s lands for a roadway for a period of at least 20 years prior to the barricading thereof, (2) the identity of the roadway, i.e., its route, termini and width, and (3) that the use or enjoyment was adverse or under a claim of right.3