Prescriptive Easements: What is Adverse Use?

One of the elements that a user must prove to gain a prescriptive easement is that the use was adverse.  This is a hard concept to explain, and courts and lawyers have struggled with its meaning over the years.  On one hand, it certainly doesn’t mean antagonistic or violent.  On the other spectrum, we know that permissive use (meaning the title owner of the property has given permission for the user to travel over the land) defeats a claim of prescriptive easement.  A particularly vexing issue is whether the user must believe that he or she has a right to use the easement.  Peering into the intent of the user has been troublesome—few cases of prescriptive easement involve users intentionally trespassing.  Most believe they had a right to travel over the property.  In these cases, if the user admits they thought they could use the land, can their use be considered “adverse”?

Fortunately, a recent case answers that question, again, with a “yes.”   In Klinger v Smith there was a right of way over the defendants’ property from 1968 until 1995, when it was released.  However, the plaintiffs’ predecessors in interest continued using the right of way to access a well, from 1995 until the present day.  The testimony was that plaintiffs thought they had a legal right to access the well via the right of way, but they were mistaken.  The defendants-landowners argued that the admission by plaintiffs that they thought they had a legal right to access the property meant that their use was not adverse.

The Michigan Court of Appeals disagreed, relying on an earlier, similar, case.  Interestingly, rather than focusing on the user’s mindset, it flipped the script a little and focused on the property owner’s knowledge.  The court stated that the owners had the opportunity to review the terms of the right of way to determine of the plaintiffs were lawfully accessing the property.  Plaintiff’s use of the property was adverse simply because it had no legal right to use the access road.  Plaintiff did not have to demonstrate that it believed it was using the right of way without permission.

If you have questions about access via a prescriptive easement, please contact me.