Prescriptive Easement question

Access Easement Only

Widening the access or transferring use to additional parties could be considered as "overburdening the easement" and he could in fact lose his own access rights.

Paul in PA

Prescriptive easements in Oklahoma belong to the dominant estate (the user of the easement) and usually become part of that estate. If the dominant estate is divided, technically those rights would run with all the heirs and assigns of that estate.

But in the case of a property development, I have seen cases where the servient estate (the property that the easement encumbers) contests those rights. The outcome is not predictable, except that the attornies get their fees.

The dominant estate has the right to maintain its access. Improvement (or widening), in my opinion, would be outside of the original easement.

In the case of property being developed (increasing the number of people using the easement) I would think that the dominant estate could petition the servient estate to 'upgrade' the easement to a recorded document. The developed lands would then be assured of "clear and marketable title" (banks like that). This may or may not precipitate into litigation. The 'width' of the easement could be addressed at that time.

"The outcome is not predictable, except that the attornies get their fees."

Padden - you have that right!

Don - I would think that the use of the easement can be no greater than what currently exists. I also would think that use could be passed with the title to the property. I do not think the rights can be expanded for other purposes.

This is a "Lawyer" question. Your client should consult with his attorney it will keep you out of trouble at the least. I always tell my clients what I think then tell them to get a legal opnion as I am not a lawyer.

T.W.

I know this is a situational exercise and I've been on both sides of this issue.

I have seen a Judge award a full size right of way for a land locked parcel that did have an ambiguous easement recorded but absolutely nothing on the ground. I have also seen a judge award an adverse prescriptive easement only in the existing traveled way.

The difference is the recording document of course. In the first case the burdened estate should have been on notice that an easement exists, and in the second the award goes to the use.

I believe that the rights exist in the traveled way, only, and that additional widening and improvements falls outside the rights. Also, that the rights would run with the land, and not the beneficiary only. The rights are transferable to others! But not the right to make improvements beyond normal maintenance. I also believe that this can't be construed to be of "usual and normal use of private ways" such as the installation of underground, or overhead utilities...

I am not familiar with the laws of your state. However, over here on the left coast, a prescriptive easement really should be referred to as the appearance of a prescriptive easement. Simply put, it really does not exist legally until title is perfected to it. The appearance of prescriptive easement refers to that the elements likely exist in a situation that will allow for pursuit of procurement of the title right. Often the underlying fee owner can be convinced to avoid the court process and costs by recording a grant of easment.

There was a fairly recent case over here where the judge ruled that the prescriptive use included full use of the entire road prism, which included reasonable width for shoulder and drainage. The surprize in that case was that the judge also allowed the proposed installation of a utility line in the outside edge of the roadway prism. I wouldn't hang my hat on that being the norm for judgements however, partly because this case involved public use and a quasi-public utility. For a strictly private use, I've seen it go the other way where the user was striclty limited to only the existing footprint and explicit use.

Clearcut is right in CA. It generally isn't precriptive until a judge declares it so over here.

In Cali we also have a statute that says something to the effect that if the underlying owner puts up signs stating the right to pass is by permission only, then usage cannot ripen into title by prescription.

Civil Code 1008. "Right to pass by
permission, and subject to control, of owner: Section 1008, Civil
Code."

A prescriptive easement exists as soon as the requirements are met. As long as no one objects then there is no need for Court action. Court action comes in when someone (usually the servient tenement) disputes the existence of the easement. Then the parties get to go to court for several years and 10s of thousands of dollars so a Judge can determine whether the easement exists or not.

There are prescriptive roads all over the State, they are very common. For the most part no one is objecting so there is no need for Court action. A very common scenario is rural properties are rectangular (PLSS) but the terrain isn't so the access road to various parcels which has been there for 100 years follows the terrain through various properties. As long as no one upsets the apple cart then there is no need to involve a Judge. I don't think you can say the easement doesn't exist because it obviously does. Sometimes the property owners decide to formalize the easement by recording a document but that is fairly rare.

Dave, apparently you weren't involved in the decision when CDF gated off Suger Pine Rd including those portions over private lands?

I advise my clients to perfect titles whenever reasonably possible. A prescriptive right does not exist until perfected. There are many cases of where the potential for perfecting a prescriptive right was lost due to various causes. Many rights of use were lost recently in my area when the owner of large tracts of land posted the signs in conformance with cc 1008. No one protested in a timely manner and when they realized the ramifications, it was too late. Particularly those who recently purchased land interests and never enjoyed the rights before the signing. As a result they now have to renew use agreements at a periodic cost, with no assurance of continued availability.

Another instance was a small subdivision was denied until the owner could prove access. Title company, county and owner came to realize best solution was to pursue perfecting the title to those lands whose access was only through the appearance of prescription. These were fairly easily obtained as the underlying fee owners were able to be convinced it was way cheaper to grant the easement then to fight it in court as they were likely to lose. Best benefit was that the grants defined a use with more ability to be developed than what may have come out of a court judgement.

Baker v. Bolin - Feb. 15, 2012

Not about the width of the easement...

DDSM

I agree, prescriptive easements are not the best way to access a property. That doesn't mean they don't exist.

Proving existence is a problem but if it exists, it exists.

I agree, advising clients to improve their rights where necessary is always a good idea. I would rather have a deeded road of specified width than a prescriptive easement.

I had nothing to do with Sugar Pine Road, whatever that is. I'm just a trooper following orders.

Need a golfball easement?

See the bottom of this link for some California cases:
http://www.dirtlawyer.com/pe-summary.html

FELGENHAUER v. SONI (2004)

http://caselaw.findlaw.com/ca-court-of-appeal/1010360.html

If you read the Court's discussion of this case (where they uphold the ruling for the easement), you will see that they say the easement exists as of 1988 when a gate was constructed across the easement. The gate would only have been relevant if the easement did not yet exist.

I agree that it is a "lawyer question".

In many jurisdictions the transferability of rights in real estate which are unwritten are problematic due to the Statute of Frauds.

I would be very leery of purchasing a parcel served only by a claim of an unwritten easement. I think title companies and mortgagors feel the same way.