Prescriptive Easements On Undeveloped Land

A prior post discussed and defined a prescriptive easement.  In short, a prescriptive easement can arise through use of another’s property to access your own property.  That use must be open, notorious, adverse (sometimes called hostile), and continuous for a period of fifteen years.

This article addresses prescriptive easements over undeveloped land.  In northern Michigan we are blessed with lots of undeveloped property.  Hunting and fishing parcels are often landlocked (either by other parcel splits, lakes and rivers, or state land) and the parcels have been accessed over time through other parcels.  The standard for granting a prescriptive easement in this case might be different—and higher—than the standard applied for developed properties.

The phrase used by Michigan Courts to describe such parcels is “wild and unenclosed land.”  There is no concrete definition of what makes land wild and unenclosed, but generally the following elements will be considered: whether there is a dwelling, whether the land is heavily forested, whether the land has established roads (as opposed to two tracks or logging roads), and/or how the land is used.  Whether the land is wild and unenclosed is a factual determination for the Court or jury.  Note that the parcel in question is the parcel over which the easement travels—if you use my property to access your property, the question before the court will be whether my property (not yours) is wild and unenclosed.

If the land is found to be wild and unenclosed a heightened standard will be applied before a prescriptive easement is found.  Merely using the land to access your parcel is not considered adverse, which is one of the elements of a prescriptive easement.  This is because of the nature of the land—generally owners of wild lands have permitted others to use the lands, and therefore use of the land is not generally considered hostile.  The following language from a 1932 case explains it well:

One may acquire a right of way by prescription over wild and unenclosed lands. But, while use alone may give notice of adverse claim of enclosed premises, the weight of authority is that it raises no presumption of hostility in the use of wild lands. This distinction is in recognition of the general custom of owners of wild lands to permit the public to pass over them without hindrance. The custom had been particularly general as to logging roads over timber lands until the carelessness of hunters and campers produced such fire hazards that the protection of timber required the permission to be circumscribed. The tacit permission to use wild lands is a kindly act which the law does not penalize by permitting a beneficiary of the act to acquire a right in the other's land by way of legal presumption, but it requires that he bring home to the owner, by word or act, notice of a claim of right before he may obtain title by prescription.  Du Mez v. Dykstra, 257 Mich. 449, 451, 241 N.W. 182, 183 (1932)

Thus, to establish a prescriptive easement over a wild and unenclosed parcel, the user must show that notice of some sort of “claim of right” was given to the owner of the parcel.  This means that the user must prove facts that show the user was demonstrating some sort of ownership right to use the parcel, or that the use was otherwise adverse or hostile to the ownership of the property.  Merely using an established two track or logging road will not be enough to establish a prescriptive easement.

Keep in mind that other forms of easement may be applicable in undeveloped land situations (particularly easements by necessity).  If you have any questions about easement issues or disputes, please call or email me.