Easement By Prescription Must Be Strictly Proved

May 7, 2015 | Kristine A. Tidgren

A recent case from the Iowa Court of Appeals reminds us that in order to acquire title to the property of another through a prescriptive easement (a non-exclusive form of adverse possession), the plaintiff must strictly prove the elements of the claim. In this case, the plaintiff proffered no such proof.

Adverse possession is a unique doctrine that can seem quite unfair. It’s a method recognized in all states through which parties can acquire title to property that’s not actually theirs. To do so, they must show essentially that they’ve used the property as their own for a long period in an open and notorious way. The general policy behind this doctrine of essentially turning trespassors into owners is that title to property should be certain. Justice Holmes has stated, "If an owner abandons his land and the land is possessed and used by another for the statutory period, beyond which the true owner no longer has a cause of action in ejectment, the trespasser has put down roots which [a court] should not disturb." These claims, which foster much litigation, often arise where everyone would think a party already owns the property. The doctrine provides a method to make that so.

Adverse possession grants a party fee simple title to the property.  A prescriptive easement grants the petitioning party a non-exclusive right to permanently use the property of another. These parties do not acquire fee simple title to the property.

In Iowa, a party can establish the existence of a prescriptive easement by showing that they have used another’s land (1) under a claim of right or color of title, (2) openly, (3) notoriously, (4) continuously, and (5) hostilely for (6) ten years or more. These elements must be strictly proved. They cannot be presumed.

In the recent Iowa case, the plaintiffs sought to show that they had acquired the right to use a gravel path that separated their property from that of their neighbors. The path comprised two separate gravel driveways bisected by a grassy strip. The plaintiffs had used the gravel path for years, mowing the grassy strip and helping to pay for gravel on their neighbor’s side of the driveway. After conducting a survey, the neighbors discovered that they owned the grassy strip. They then paved their driveway and constructed a fence on the grassy strip. After that, the plaintiffs could no longer park their car on their portion of the gravel driveway. Consequently, they filed an action to quiet title to what had long been shared property. They first sought an easement by acquiescence but the trial court proceeded on a theory of easement by prescription.

At trial, one plaintiff testified that she and her husband had used the grassy strip pursuant to a "mutual understanding" with their neighbors. That evidence doomed the plaintiffs’ case. The Iowa Court of Appeals agreed with the trial court that the plaintiffs’ use of the property was purely permissive. The court found that the plaintiffs’ maintenance activities were insufficient to put the neighbors on notice of the easement claim. They also had failed to show “substantial amounts of labor or money expended” so as to acquire a prescriptive easement through a more relaxed standard. Courts will sometimes allow permissive uses to ripen into claims of adverse possession under promissory estoppel principles. This case did not establish such a set of facts.

The takeaway from this case is that to prevail in a standard prescriptive easement claim, there can be no agreement or permissive use. The use must have been under a claim of right, hostile to the actual landowner.

The case was Bales v. Shepard, No. 14-0960 (Iowa Ct. App. May 6, 2015).