Also known as: prescriptive uses · prescription
Written by attorneys · grounded in primary & secondary sources — see below
A use of land that is adverse to the owner of the interest against which the servitude is claimed. The use must also be open or notorious and continued without effective interruption for the prescriptive period.
Parker Phillips began driving maintenance trucks across a neighbor's gravel path several times each week in 2005 to reach a utility connection. The crossings continued on the same schedule through multiple ownership changes with no break in the pattern until a barrier appeared in 2023. Because the use remained continuous and uninterrupted for the full prescriptive period, the benefit accrued to Parker as the adverse user.
Peak Performance installed fiber optic cable along a narrow strip of adjacent land in 2005 without any written agreement. After selling the dominant parcel in 2015 the buyer continued identical maintenance activities under an express assignment of the route. The periods of use by the two successive owners may be combined because privity exists through the written transfer of the benefited interest.
Select any source to read its text and confirm it supports the definition.
Pedro Pacheco permitted members of a running club to cross his farm on foot only during spring and fall training seasons for more than twenty years. The club never used vehicles or expanded the path during that time. Any prescriptive servitude that arose is therefore limited in duration to the precise seasonal pedestrian use that occurred throughout the prescriptive period.
Pamela Phillips used a path across neighboring land for access to her warehouse for the full prescriptive period. When she sold the warehouse the buyer continued the identical use. The benefit of the prescriptive easement accrued to the buyer as successor because the easement created by prescription is appurtenant to the benefited land.
Peter Park crossed a neighbor's field daily to reach a public road without permission or any written grant. The use remained open, visible, and uninterrupted for the statutory period. The adverse use therefore created a servitude benefiting Park's parcel under the requirements for prescriptive creation.
Phuong Pham began crossing a vacant lot to reach her store in 2003. After selling the store in 2013 she assigned all interests in the access route to the buyer, who continued the same daily crossings. The two periods of use may be added together because the written assignment transferred the inchoate prescriptive right and satisfied the privity requirement.
The use must be adverse to the owner of the land or interest against which the servitude is claimed. It must also be open or notorious and continued without effective interruption for the prescriptive period. When those requirements are met a servitude arises by operation of law.
Yes. Periods of prescriptive use may be tacked together when there is a transfer of either the inchoate servitude or the estate benefited by the inchoate servitude. The assignment or conveyance must create privity between the successive users.
No. The Restatement definitions require adversity, openness or notoriety, and continuity without effective interruption. Exclusivity is not listed among the elements needed for a prescriptive use to ripen into a servitude.
The durational extent is limited by the extent of the denial of the servient owner's rights during the adverse use. Seasonal or intermittent use therefore produces an easement whose scope is correspondingly limited to those periods and that character of use.
…the three patients died. Although the Court of Appeals considered the constitutionality of the statute "as applied to the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths," the court did not have before it any individual plaintiff seeking to hasten…