This content was adapted from an original article by Kenneth W. Hart, Carney Badley Spellman, published in August 2007. Read the original article here.Â
What Is an Easement?
Washington law recognizes several ways easements are created other than by express grant, through various judicial doctrines, and in some cases, by private condemnation. While ordinarily any conveyance of an interest in real estate must be in writing and recorded to be protected against subsequent purchasers, interests in real property acquired by prescription are beyond the reach of the recording act because title is founded in possession, not in any documented conveyance, transaction, or transfer between property owners.
Easements by Prescription
Easements by prescription are created by actual use of another’s land in a way one might use an easement, over a uniform route, which is open and notorious, hostile, continuous, and exclusive. The distinction between prescription and adverse possession is that prescription involves the use of another’s land that gives rise to easement rights, whereas adverse possession involves the possession of another’s land that gives rise to a claim to title. The ten-year statute of limitations on actions to recover land applies to prescription as well as to adverse possession.
Actual Use
Prescriptive use requires proof of some actual, physical use of another’s land of a kind that one would make of an easement, for example, by walking, driving, or maintaining utility lines. The particular characteristics of the use will ultimately define the nature and scope as well as the location of the claimant’s prescriptive easement rights. Usually a prescriptive easement will be on land appurtenant to that of the adverse user, but it is also possible to acquire a prescriptive easement over non-adjoining land, which is a so-called easement in gross. The Washington Supreme Court has said that it is at least possible for the public to acquire an easement by prescription.
Open and Notorious
Open and notorious means only that the use is such that it is reasonably discoverable by an owner. It does not require proof that the owner had actual knowledge, but only that a reasonably diligent owner who looked would discover the usage. In most cases, such as roads or above-ground utility lines, no serious question exists as to whether the use was sufficiently notorious. If the usage is so open and notorious that an ordinarily vigilant owner would know of it, knowledge will be presumed.
Hostility
Hostility simply means that the use was without the owner’s permission, or essentially, was trespass. Typically, the adverse user is not obliged to give the owner any express notice of a hostile claim, but rather, hostility is implied from the facts. When permission was originally given by the owner, the adverse claimant will have to demonstrate facts or circumstances that amount to an ouster to overcome the permissiveness of the use. Verbal notice from the adverse user to the landowner would constitute an ouster, or ouster would be implied from the facts when the usage takes on a character that would reasonably inform the owner that the adverse user now claims a right of use.
An adverse user need not have either a subjective belief that he is the owner of the property he is using or a subjective intent to acquire a prescriptive easement. In Chaplin v. Sanders, the court expressly abandoned any requirement of good faith or subjective intent for adverse possession, overruling all earlier decisions that might have imposed such a requirement.
Burden of Proving Hostility versus Permission
Like all of the other elements of adverse use, the burden of proving hostility is nominally on the adverse claimant. However, this presents a practical problem because hostility simply means lack of permission, meaning the claimant is in the position of having to prove a negative. Some courts have solved this problem by holding that if the claimant is able to prove all other elements of prescription, there is a presumption that the use was hostile or adverse.
Whether the land in question is enclosed and developed or unenclosed and vacant also affects the burden of proof. In cases of enclosed or developed land, if the adverse claimant proves his use has been open and notorious, continuous, and exclusive, this creates a presumption that the use was hostile. On the other hand, if the prescriptive use is of vacant and unenclosed land, the presumption is that the use was permissive.
An owner may not protect against adverse claims by foisting permission upon an adverse user. In Huff v. Northern Pacific Railway Company, the court held that the railroad could not thrust unsought permission on the adverse claimant once adverse use had begun. Thus, the use continued to be hostile and ripened into a prescriptive easement.
Implied Permission and the Neighborly Accommodation Doctrine
Courts sometimes use the concept of neighborly accommodation to infer permissive use over unenclosed land to defeat a prescriptive easement claim. The analysis is factual, and the Washington Supreme Court has resisted committing to any one strict factual test as to whether it applies. In Roediger v. Cullen, the court used the neighborly accommodation concept to reason that use of a pathway across several waterfront lots on Vashon Island was permissive, and no prescriptive easement was created.
Since Roediger, however, the court has backed away from a broad application of this doctrine. The court declined to apply the neighborly accommodation doctrine in Gray v. McDonald, which dealt with property in a city between a platted city street and an alley, used by the general public rather than neighbors. Other cases in which the court has backed away from the doctrine include those involving ongoing antagonistic relationships between parties, which negate a claim of good will accommodation.
Another factor is whether the owner maintains a road or path and the easement claimant is merely a co-user. In those cases, the presumption is that the use is permissive. If instead the claimant made the road or path himself, this is persuasive evidence that the use is adverse rather than permissive.
Continuous Use
Prescriptive use must be continuous and uninterrupted, meaning that the usage be as continuous as would be normal if the adverse claimant had a rightful easement. The claimant must at least prove repeated use over the course of the period of the statute of limitations, but need not prove daily use or use on any particular schedule. Isolated or occasional acts of trespass do not constitute continuous use.
In order to interrupt the continuity of an adverse use, the owner should deliberately block the usage for some appreciable length of time during which the adverse claimant is attempting, or would ordinarily be expected to attempt, to make use of the property. A verbal protest is not enough. If the owner cannot otherwise stop the adverse use, his only recourse may be a lawsuit.
Exclusive Use
The use of another’s land may be exclusive for purposes of prescription even though the use by the owner of the land would not constitute wrongful interference with an easement of the kind being claimed by the prescriptive user. Use may be both prescriptive and exclusive even when there are a number of different adverse users, who will all acquire an easement in common. A corporation may acquire a prescriptive easement through the usage of its employees or members.
The general public may acquire prescriptive easements for roads in two ways. First, adverse use by the public for ten years will establish a public way by prescription. Second, RCW 36.75.070 allows the public to acquire county roads outside incorporated cities by seven years’ prescriptive use, when such roads have been worked and kept up at the expense of the public.
Prescriptive Period and Tacking
Tacking occurs when the owner of a parcel who has been making a prescriptive use upon another’s land conveys that parcel to a grantee who continues the prescriptive use. The prescriptive use of a succession of two or more users can be added together to determine the total period of adverse use.
Easements by Implication
Courts will sometimes imply that an easement exists even in the absence of a grant in a written instrument. Although proof of a conveyance of property is necessary to establish the existence of an easement under easement by implication doctrine, the easement is not implied from the language of the instrument of conveyance. Rather, the existence of the easement is implied from the facts and circumstances surrounding the conveyance. Consequently, the Statute of Frauds does not apply to the creation of easements by implication.
To establish an easement implied from prior use, the following elements are required: a landowner conveys part of his land and retains part, usually an adjoining parcel; before the conveyance, there was a usage existing between the parcel conveyed and the parcel retained that, had the two parts then been separately owned, could have been an easement appurtenant to one part; this usage is reasonably necessary to the use of the part to which it would have been appurtenant; and the usage is apparent.
Necessity
In the law of implied easements, what constitutes necessary is often the critical issue. All that need be shown is reasonable necessity. The test of necessity is whether the party claiming the right can, at reasonable cost, on his own estate and without trespassing on his neighbors’ property, create a substitute. Necessary does not mean strict necessity, but only that other possible routes of use would be substantially less convenient, that is, more expensive to develop and use.
Apparent Prior Use
The requirement that the pre-existing use be apparent, such as a driveway or roadway, supports the conclusion that an easement implied from prior use was within the grantor’s and grantee’s contemplation. Most courts have taken the position that an underground line is sufficiently apparent if parts of it or appliances connected to it are visible, thus allowing a way to trace the underground line.
Easements Implied from Necessity
Easements implied from necessity, or ways of necessity, are easements of passage. Where land is sold that has no outlet, the seller, by implication of law, grants ingress and egress over the parcel to which he retains ownership, enabling the purchaser to have access to his property. The elements of proof are: a landowner conveys part of his land and retains part, usually an adjoining parcel; and after the severance of the parcels, it is necessary to pass over one of them to reach a public street or road from the other.
The difference between easements implied from necessity and easements implied from prior use is that with the former, there need be no pre-existing use. Since the easement of necessity arises at the moment the two parcels are severed, the necessity that existed at that moment defines the scope of the easement. Once an easement of necessity is created, its use may gradually change as the uses of the dominant estate change. Usually, the owner of the servient estate is allowed to establish the route in the first instance, and if he fails to do so, the owner of the dominant estate may do so. If neither chooses, or a dispute arises, the court will fix the route that is most suitable and convenient in the circumstances.
The Statutory Way of Necessity
The common law way of necessity should not be confused with Washington’s special statutory way of necessity, which provides for private condemnation under RCW Chapter 8.24. Because private parties do not ordinarily have condemnation rights, that right is specifically provided for in the state constitution.
The principal difference between this procedure and the common law easement implied from necessity is that under the statute, there need not have been a unity of title and severance. The selection of the route is governed by specific criteria set out in RCW 8.24.025, including that the least-productive land is to be used if it is necessary to cross agricultural land. The Washington Supreme Court has been rather strict in fixing the scope of the easement, refusing to allow a condemner to take a roadway any wider than that strictly required to gain access to his land.
The condemnor has the burden of proving both reasonable necessity and the absence of another feasible route. If the property already has an existing easement that provides adequate access, condemnation under the statute is not available. The existing alternative access route must be a legally enforceable easement, not merely a revocable license. Private condemnation may not be used to condemn state land. The private condemnation statute is a remedy of last resort for the landowner who has no other reasonable means of access.
As with public condemnation, the affected property owner in a private condemnation action is entitled to be compensated for the land taken or damaged. The statute also provides that reasonable attorneys’ fees and expert witness costs may be allowed by the court to reimburse the condemnee. Even if the condemnation action is later abandoned and no taking occurs, the condemnor is still obligated to pay the condemnee’s legal fees.
How Easement Disputes Are Resolved
Disputes between owners and adverse users of real property are resolved in an action to quiet title and/or for ejectment. Quiet title and ejectment claims can be brought in the same suit. Jurisdiction lies in the superior court of the county where the real property is situated.
An owner seeking to prevent an adverse usage of his property would bring an action for ejectment, and probably for quiet title as well, to remove the cloud from his title. The adverse claimant would use a quiet title action to establish his right of use. Depending on the circumstances, the parties might be able to cure some clouds on title themselves, informally and without litigation, working directly with a title company. Affidavits can sometimes be used to establish or clarify the description or location of an easement, and a quitclaim deed can be used to relinquish an easement or potential easement.
Before commencing suit, a form of title insurance policy known as a litigation guaranty should be obtained to ensure that all parties with an interest of record in the property at issue are joined in the action, so as to bind them to any judgment entered by the court.
How Easements Can Be Terminated
An easement, whether originally established by express grant or prescription, can be extinguished through adverse use by the owner of the servient estate. The fee owner will have to show much more than mere possession and use to satisfy the hostility element of prescription, since he already has the right to use that portion of his property subject to an easement in any way that does not interfere with the easement’s use.
An easement may also be abandoned. Absent an express declaration of abandonment, mere nonuse does not in and of itself constitute abandonment, but nonuse does constitute relevant evidence which may justify a finding of abandonment. An easement will be extinguished where the intention to make no use of it is clearly evidenced by the parties, usually an affirmative act by the owner of the dominant tenement to permanently not use the easement. If the owner of an easement, by his nonuse and its accompanying circumstances, has misled the owner of the property to believe the easement does not exist and into materially changing his position on that assumption, the easement owner may be estopped from asserting rights in the easement.
An easement may also be terminated if its holder executes a proper instrument releasing the easement to the grantor or his successor. Since an easement is an interest in land that normally is created by an instrument in deed form, it must be released in the same manner, even if the easement was acquired by implication or prescription.
An easement is extinguished by merger when servient and dominant tenements come into common ownership. The policy behind the merger is that an owner whose title encompasses all the rights included within the easement simply cannot own the same rights twice. The easement is not revived if the owner in whom it has been merged later conveys the land to another, unless upon express grant contained in the deed.
If you have questions about easements, contact Chris Thayer, thayer@carneylaw.com.
Disclaimer: This post is for general informational purposes only and does not constitute legal advice. Reading it does not create an attorney-client relationship. For advice about your specific situation, consult a qualified attorney licensed in your jurisdiction.
