The general common law of trespass in most states presumes that entry to land of another is nonpermissive. That presumption can be overcome by expressions of permission or by social conventions, such as opening up a shop or knocking on someone’s front door to lobby them to support a political candidate. Some states have an exception for undeveloped forest land where nonowners can hunt unless the landowner has posted “no hunting” signs.
This presumption that entry is nonpermissive is a staple of adverse possession law. Occupation of the property of another is presumed to be nonpermissive unless facts can be shown otherwise. The same has historically been true for prescriptive easements. Use of another’s land without permission is presumptively a trespass.
However, in recent years, some courts have balked at granting prescriptive easements for uses other than travel over a right of way. They have not wanted neighborly gestures to result in the loss of property rights through a permanent easement in a neighbor. To do so, they have reversed the presumption and held that limited uses of another’s land is presumed to be permissive rather than nonpermissive.
Some courts have done this in limited circumstances such as use of a road. The Supreme Court of Alabama, for instance, has said that use of a road over another’s land is presumptively permissive in Alabama rather than presumptively nonpermissive. Riley v. Boles, 2024 WL 133012 (Ala. 2024). Other courts, however, have adopted broader presumptions that use is permissive so as to defeat prescriptive easements claims generally.
It is apparent that the courts are not thinking about the ways this would change trespass law in general and would make most entries on land into privileged actions rather than presumptive trespasses. Whether that is a good or a bad thing is another question, and whether one can distinguish limited entries from repeated entries is also a distinct question.
The North Carolina Supreme Court has muddied the waters by holding that “the law presumes that use by a person other than the landowner is permissive.” Hinman v. Cornett, 2024 WL 2338360 (N.C. 2024). But then, later in the opinion, the court takes it back by asserting that “use… of property under a mistake of right and without permission has long constituted evidence sufficient to rebut this presumption in the context of prescriptive easements.” So the use is presumed permissive, but then … it is presumed nonpermissive. Pretty confusing.
If states dislike prescriptive easements, they can abolish them by presuming that use of another’s land is presumptively permissive rather than nonpermissive while presuming that occupation or “possession” of land is presumptively nonpermissive. But they should be aware that this means denying the power to acquire an easement by prescription; that would be a big change in the law and if courts want to do that they should be aware of what they are doing. They should particularly be aware that they may have just changed trespass law as well as prescriptive easement law by asserting that entry to the land of another is not a trespass unless the owner clearly communicates that entry is unwelcome.