County Has Prescriptive Easement For Roadway

December 3, 2007 | Erin Herbold


A prescriptive easement is an easement determined to exist by law that gives the easement holder the right to use a part of another person’s property once it has been determined that the party asserting the easement has used the property in a certain manner for a set number of years (10 years in Iowa).  This case involved a county’s assertion of an easement for a road over a strip of the plaintiff’s property.

The roadway in dispute was located on the section line adjacent to the plaintiff’s property.  Historically, the road was used as an access road for the neighboring landowners, but the county claimed a prescriptive easement for the roadway’s use.  While the county never assessed property taxes for the portion of the land to the neighboring landowners, the county did maintain culverts, ditches, and warning signs for motorists. 

When the plaintiff purchased the land, he demolished the old homestead and put part of the access road back into production. He did use the rest of the road during harvest season and the county did bring in extra rock and maintain the culverts on this part of the roadway.  In 2003, the county placed stakes in the plaintiff’s fields, indicating that the road was going to be re-graded and used for travel.  Though the plaintiff noticed the stakes, he did not contact the county to determine their intentions for the land’s use.  Two years later, the plaintiff filed an action to quiet title to the roadway and remove the county’s improvements.

The trial court ruled that the county had acquired an easement by prescription and the appellate court agreed.  Since the county used the plaintiff’s land “under a claim of right” for over 100 years, on and off, they were entitled to possession of the roadway.  The court focused on the elements of “hostility” and “claim of right” - essential requirements for establishing a prescriptive easement.  In addition, the county’s acts of maintaining and improving the land for at least ten years supported the county’s claim.  In addition, the county’s possession of the roadway was expressly given to the landowner through the expenditure of public funds to maintain the road.  Because a public entity may not use public funds for a private purpose, the maintenance of the roadway was determined for purposes of public travel.  B.J. Doane, LTD., v. Cerro Gordo County, No. 7-706/07-1252, 2007 Iowa App. LEXIS 1187 (Iowa Ct. App., Nov. 15, 2007).