“What You Need to Know About Prescriptive Easements” by Taylor C. Moore

One day, as you are playing with your kids in the backyard, your neighbor walks across the back portion of your yard. He doesn’t wave to you or say anything and you don’t think much of it. The next day, he does it again, and the day after that as well. As he is crossing your yard for the fourth time, you say, “Hey, you know this is my yard, right?” The surly neighbor replies, “I don’t care, it’s a free country, I’ll walk where I please!”
As the weeks turn into months and the months turn into years, your neighbor continues his ritual of walking across the back of your yard. You figure, “I guess it doesn’t matter anyway, this guy is just a weirdo, and I don’t want to start any trouble.” After ten years has passed, there is a visible pathway created from your neighbor’s continuous uninterrupted travel across the back of your property. You’ve had enough! You decide to put in a fence, figuring this will stop him. After your fence is completed, you are served with a civil summons; your neighbor is suing you! In his Petition, your neighbor alleges that he has the legal right to cross your backyard and that the fence constitutes a nuisance which unreasonably interferes with his right to use the pathway and the fence must be removed at your expense. When you call your attorney, you are shocked to find out that your neighbor is right!
Based upon the above facts, your neighbor satisfied all conditions precedent to establish an easement by prescription. An easement by prescription is established by clear and convincing evidence showing ten years of use that is continuous, uninterrupted, visible, and adverse under claim of right. Wallace v. Snider, 204 S.W.3d 299, 303-304 (Mo. App. S.D. 2006).
In this scenario, your neighbor’s use was continuous because he used it every day, not that he had to – the element of continuousness would probably have been satisfied if he a used it a few times every week. Also, his use was never interrupted because you decided that you didn’t “want to start any trouble.” In hindsight, you should have put up your fence sooner (i.e.,before ten years had passed). If you had, this would have interrupted his use; thus, even if he tore the fence down and started using the back of your yard again, the requisite ten year period would have started all over again. Your neighbor’s use was visible (i.e., not clandestine or secretive) – he didn’t use it at 2:00 a.m. in the morning when no one was looking, he did it right out in the open for everyone to see. Lastly, he did it under claim of right (i.e., he never asked for your permission and didn’t care if he had it, in his mind he had the right to use it and used it pursuant to that belief ). When I have described this scenario to friends and family, and explain that the surly neighbor would win in a court of law, many are shocked. And obviously, the scenario given is an extreme example to illustrate a point. The truth is, prescriptive easements are formed all the time and usually the owner of the land being burdened by the easement has no idea, until it’s too late.
It’s more likely to happen like this: Your mother and father live in a modest country home on the outskirts of town. While they were alive, they let a neighbor use their driveway and drive across the back of their acreage in order to allow him easy access to his home located behind your parent’s acreage. At the time the use started, the neighbor had asked permission to use the acreage and your father and mother had no objections, because this is the Ozarks and it seemed like the neighborly thing to do. Nothing was ever put in writing.
After your father and mother pass away, a condominium developer purchases the neighbor’s lot behind your parents and begins paving a road over the dirt path that was formed from the neighbor’s long continued use.When you object, the condominium owner sues you claiming that he has the right to use the dirt path and the right to pave it. Although you believe that your parents gave the neighbor permission to use the acreage and, thus, the use of the neighbor was never adverse under claim of right, you’re not sure how you’re going to prove it because your parents are deceased and the neighbor is in a nursing home with Alzheimer’s.
Under this scenario, you may be out of luck as well. In cases dealing with prescriptive easements, “[a] finding of adversity is often inferred, not directly proved.” Smith v. Chamblin Properties, LLC, 201 S.W.3d 582, 587 (Mo. App. W.D. 2006). The oft quoted rule being that “[a] long and continuous use justifies the presumption of adversity and shifts the burden to the owner to counter the presumption by proving that permission was given for the use.” Id at 587-588. Thus, in this case, the burden is going to be on you to prove that the use was permissive, but as stated earlier, you can’t prove it!
In this fact pattern, all of this could have been avoided if your parents had offered your neighbor a license to use their acreage, then you would have written evidence that the use was always permissive. The point is this: Be cognizant of the uses your neighbors are making of your land and your parent’s neighbors are making of your parent’s land. If you have concerns, call your attorney. Make sure that people aren’t gaining rights to your property without your knowledge.