Written by attorney James S. Tupitza

Creating an Easement Chapter 4 Easement by Prescription pt 1

F. Easement by Prescription --

  1. Elements

a. An easement by prescription is created by adverse, open, continuous, notorious and uninterrupted use of land for 21 years. POA Co. v. Findlay Tp. Zon. Hrg. Bd., 713 A.2d 70 (Pa., 1998); Morning Call, Inc. v. Bell Atlantic - Pennsylvania, Inc. 761 A.2d 139, 143 (Pa.Super. 2000); Tricker v. Pennsylvania Turnpike Com'n, 717 A.2d 1078 (Pa. Cmwlth., 1998).

b. A prescriptive easement is the right to use the property of another that is not inconsistent with the property owner's rights. Soderberg v. Weisel, 455 Pa. Super. 158, 687 A.2d 839 (1997).

c. The concept of prescriptive easement is based on the presumption of grant (presumption that arises from continuous use of the land indicating a claim of right). Steigelman v. Pennsylvania Yacht Club, Inc., 432 Pa. 111, 246 A.2d 116 (1968); Pierce v. Cloud, 42 Pa. 102 (1862); Pittsburgh Railway Co. v. McGrady, 117 Pitts. L. J. 386 (1969).

d. A prescriptive claimant need not prove that the easement is necessary. Boyd v. Teeple, 460 Pa. 91, 331 A.2d 433 (1975).

e. One cannot acquire a prescriptive easement to light, air or view. Adasiak v. Cyback, 31 D & C 3d 1 (1982)

f. The area claimed by prescriptive easement must be located with certainty, and with definite limits, in a fixed position on the ground. Schall v. Barnes, 10 Chest. 252 (1962).

g. The owner of the alleged servient estate has the burden of proving that the use of the easement was under license, indulgence, or special contract inconsistent with a claim of right by the prescriptive user. Steigelman v. Pennsylvania Yacht Club, Inc., 432 Pa. 111, 246 A.2d 116 (1968); Okeson v. Patterson, 29 Pa. 22 (1857); Eastland v. Stager, 22 Cambria C. R. 155.

h. A prescriptive easement cannot be acquired where the dominant tenement and the servient tenement share a common owner. Kerstetter v. Witmer, 55 Dauph. 352 (1944).

i. Once the claimant obtains a prescriptive easement, the servient owner can be enjoined from interfering with the easement. Tarrity v. Pittston Area School Dist., 16 Pa. Cmwlth. 371, 328 A.2d 205 (1974).

j. Where delivery trucks used a portion of defendant's land in order to make a sharp turn onto claimant's property, such use was insufficient to put the defendant on notice, and therefore did not support a claim of prescriptive easement. Treedman's Cleaners, Inc. v. Myers, 34 D & C 2d 306 (1964).

k. It is possible to acquire a prescriptive easement for the discharge of storm water onto the servient tenement. Girdersleeve v. North East Pennsylvania Borough, 52 Erie C. L. J. 89 (1969).

l. The statute that requires an out-of-possession holder of title by adverse possession to file a statement (68 P.S. § 81) applies only to claims to fee title and not to prescriptive easements. Jackson v. Pace, 20 Monroe L. R. 104 (1958).

m. Similar to adverse possession but exclusivity not needed. “Adverse possession and prescription are different in that the former requires actual possession (dominion over the land) and exclusive use, while the latter involves an easement-like use of the property. Newell Rod and Gun Club, Inc. v. Bauer, 409 Pa. Super. 75, 597 A.2d 667 (1991). Therefore, if the claimant and the true owner use the property in common, it is not possible for the claimant to acquire fee title, but it is possible for him to obtain a prescriptive easement."

n. “A prescriptive easement is a right to use another's property which is not inconsistent with the owner's rights and which is acquired by a use that is open, notorious, and uninterrupted for a period of twenty-one (21) years." Waltimyer v. Smith, 383 Pa.Super. 291, 556 A.2d 912 (1989).

o. A prescriptive easement cannot be acquired through unenclosed woodlands. 68 P.S. § 411; Martin v. Sun Pipe Line Co., 542 Pa. 281, 666 A.2d 637 (1995); Humberston v. Humbert, 267 Pa. Super. 518, 407 A.2d 31 (1979).

p. Even where a right-of-way runs through improved land as well as unenclosed woodlands, 68 P.S. § 411 nonetheless applies to preclude the property owner from claiming the right to any easement by prescription. Trexler v. Lutz, 180 Pa. Super. 24, 118 A.2d 210 (1955), (citing Kurtz v. Hoke, 172 Pa. 165, 33 A. 549 (1896)).

Continued (c) James S. Tupitza 2010

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