What is a prescriptive easement under Idaho law?

A prescriptive easement is an easement that is created by use. This most often arises when someone has been using a road over another owner's land for a number of years, but there is no signed or recorded easement. The user of the easement will sue the property owner to establish that an easement exists. 

To establish an easement by prescription, a plaintiff must prove by clear and convincing evidence that use of the subject property is:

  1. open and notorious; 
  2. continuous and uninterrupted;
  3. adverse and under a claim of right;
  4. with the actual or imputed knowledge of the owner of the servient tenement; and 
  5. for the statutory period of five years.

H.F.L.P., LLC v. City of Twin Falls, 157 Idaho 672, 679, 339 P.3d 557, 564 (2014). 

Prescriptive Easements are Disfavored by Courts

Courts disfavor private prescriptive easements. Id. The reason is prescription acts as a penalty against the land owner where the easement is located. Id.

This means, a Court will carefully review the facts to determine whether a prescriptive easement exists. If the plaintiff claiming the easement fails to meet any of the elements by clear and convincing evidence, the Court will find for the land owner and not impose a prescriptive easement.  

Open and Notorious

A plaintiff must show that the use of the easement was "open and notorious." This is a simple concept. The land owner must know the easement was being used. This does not mean the land owner must actually know. It only means that if the land owner were to go to the land, it would be readily apparent that someone was using the land. "The open and notorious use must rise to the level reasonably expected to provide notice of the adverse use to a servient landowner maintaining a reasonable degree of supervision over his premises." Anderson v. Larsen, 136 Idaho 402, 406, 34 P.3d 1085, 1089 (2001).

Continuous and Uninterrupted

A plaintiff must show that the use the easement was "continuous and uninterrupted." This means, the easement use did not stop and start. For example, suppose Road A was used for 3 years, then Road B was used for 1 year. After the year was over, Road A was used again for 2 years. The use is not continuous and uninterrupted and no prescriptive easement was established. To be "continuous and uninterrupted", the access must continue for more than 5 years.

Adverse and Under a Claim of Right

A plaintiff must show the use was "adverse and under a claim of right." This means, the use of an easement was not by permission. The best way to defeat an easement by prescription is for the land owner to give permission. "Under a claim of right" means the easement user states he or she has a right to use the easement. In general, this requires the easement user to do more than simply use the easement for the prescriptive time period.

If the easement is also used by the general public, then the easement user must take a clear step to claim the right to use the easement. When the general public uses the easement as well, the "mere use of property alone is insufficient to establish a private prescriptive easement; rather, the claimant must perform some independent act signifying to the owner the adverse user's claim." Hughes v. Fisher, 142 Idaho 474, 481, 129 P.3d 1223, 1230 (2006). This rule makes it harder to establish an easement by prescription if the public uses the easement along with the plaintiff.

If the land is "wild, unenclosed, or unimproved land, the presumption of adverse use does not apply; rather, permissive use is presumed." H.F.L.P., LLC, 157 Idaho at 681, 339 P.3d at 566. The reason for this rule is wild, unenclosed, or unimproved land is more likely to be used without anyone there to stop it. 

Actual or Imputed Knowledge of the Owner

The land owner must know or be deemed to have known the land was being used by the plaintiff. If the owner does not actually know, the Court will "impute knowledge" if the owner could have known by inspecting the land. The question of whether the owner had knowledge is one for the trial court to figure out. It will look at the facts and make a call. 

Statutory Period - 5 or 20 Years?

The plaintiff must show that the use of the easement was for more than 20 years. H.F.L.P., LLC, 157 Idaho at 681, 339 P.3d at 566. See also Idaho Code § 5-203 (2015).

BUT, there is an exception. If the use of the easement started before June 30, 2001, then the statutory period is 5 years. The reason is the statutory period changed to 20 years from 5 years on July 1, 2006. Idaho Code § 5-203 (2015). However, the change in the law will not take away a prescriptive easement that is already established. The change in the law extends the period of time that the use must continue if a prescriptive easement is not yet established.

By way of example, here are two scenarios. In Scenario 1, the prescriptive easement is established. In Scenario 2, it is not.

Scenario 1. The user of Road A has used it since June 30, 2001. The use of the road has been open and notorious, adverse and under a claim of right with the knowledge of the land owner. The prescriptive easement comes into existence on June 30, 2006. The change in the law that requires the use to be 20 years will not nullify the prescriptive easement that already existed. 

Scenario 2: The user of Road B has used the road since July 1, 2001. The use of the road has been open and notorious, adverse and under a claim of right with the knowledge of the land owner. The statutory period had not been met before the law changed on July 1, 2006. The prescriptive easement will not come into existence until July 1, 2021 or 20 years after the use began. 

Scope of the Easement

Suppose the plaintiff can establish a prescriptive easement, the Court will also determine the scope of the easement. The scope will be limited to the use of the easement during the statutory period. If the road was used 2 times a day during the statutory period, the Court may limit the use to 2 times per day. By the same token, if the easement was used for recreational purposes (e.g., hunting), the use of the easement may not be changed to access to a residence.