Exclusivity makes sense for adverse possession because the very meaning of “possession” is that the adverse possessor acts like the owner and that includes the right to exclude the record owner. With easements, it makes far less sense since easements are limited uses of another’s land and the land owner can still use the land over which the easement sits as long as the owner does not interfere with the uses encompassed by the easement. To deny a prescriptive easement over a road because the record owner also uses the road doesn’t make much sense. Excluding the record owner would turn the case into one of possession rather use and that would make prescriptive easements impossible if the record owner continued using the land even if the owner did not exclude or interfere with the use of the easement by the prescriptive easement claimant.
Despite that traditional approach, the Texas Supreme Court held in Albert v. Fort Worth & W. RR. Co., 2024 WL 648670 (Tex. 2024), that prescriptive easements can only be acquired if the use is “exclusive.” I think they did so because they mechanically extended the requirements for adverse possession to prescriptive easement law, and that meant they had to figure out what “exclusive” means in the context of prescriptive easements. Most courts think it means that the record owner did not interfere with the use of the easement and in that case, exclusivity is not really an independent element at all; it simply repeats the requirement that one use the land in a continuous manner without the record land owner’s permission. The Hinman court however took the exclusivity requirement seriously and held that a prescriptive easement cannot be acquired if the record owner used the road along with the prescriptive easement claimant.
The court nonetheless got around the exclusivity requirement by arguing that the landowner used a gravel road to cross the railroad tracks while the track owner used the tracks to cross the gravel road. Since they did not use the same easement in the same way, the use by the prescriptive easement claimant was in fact exclusive, i.e., the owner did not use the easement in the same way the prescriptive easement claimant did. Again, it would be better for courts not to require exclusivity for prescriptive easements since the only real question is whether a limited use continued without permission for the statutory period. Use of the easement by the record owner does not in any way negate the elements of the claim that use has been nonpermissive for a long time and thus a trespass and the statute of limitations can operate to give the intruder a defense to a trespass claim. See, e.g., Jon W. Bruce, James W. Ely, Jr. & Edward T. Brading, THE LAW OF EASEMENTS & LICENSES §5:23 (March 2024) (the exclusivity requirement merely means that “the claimant’s use must be independent and not contingent oup the enjoyment of a similar right by others. Hence, use shared with the owner of the servient estate generally may form the basis for a prescriptive easement.”).Many courts still list “exclusive” as one of the elements for a prescriptive easement and then give little attention to it in their analysis. See, e.g., Horn v. Webb, 882 S.E.2d 894 (Va. 2023) (reciting the exclusivity requirement but giving it no independent force).