Many courts say that prescriptive easements can only be acquired if the use is \u201cexclusive\u201d among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute \u201cuse\u201d for \u201cpossession.\u201d But it make no sense for an easement to be \u201cexclusive\u201d since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement is a permanent revocation of the right to exclude the easement owner and an inability to stop the easement owner from engaging in the uses encompassed by the easement.<\/p>\n\n\n\n
Courts sometimes go out of their way to pretend that the \u201cexclusivity\u201d requirement retains force by defining it in various ways, but all of those ways simply track other elements needed to obtain a prescriptive easement, like nonpermissiveness, visibility, etc. A Virginia court, for example, defined exclusivity for the purpose of prescriptive easements as not being open to the general public but open only to the easement claimant. Hughes v. Hampton<\/a>, 103 Va. Cir. 39, 2019 Va. Cir. LEXIS 463 (2019). But that just means the claimant seeks an easement for herself, not the general public. Similarly, the Kansas Supreme Court recently tied itself in knots to retain the exclusivity requirement for prescriptive easements while admitting that all it meant is that the use was both adverse and continued without interruption by the record owner during the statutory period. Pyle v. Gall<\/a>, 2023 WL 4377200 (Kan, July 7, 2023).<\/p>\n\n\n\n I am grateful to Dale Whitman and John Rinaldi for making me aware of these cases.<\/p>\n\n\n Many courts say that prescriptive easements can only be acquired if the use is \u201cexclusive\u201d among other elements. This is a mechanical holdover from the requirements for adverse possession where courts simply keep the same requirements and substitute \u201cuse\u201d for \u201cpossession.\u201d But it make no sense for an easement to be \u201cexclusive\u201d since the dominant estate owner retains whatever rights of use are not inconsistent with the easement. It is simply not how easements work for them to be exclusive of the land owner. If the landowner cannot use the easement in any way then the owner has lost title to the property. Of course, one can write an express easement to limit the freedoms of the land owner, but in general, the way easements work is to grant a limited use to another while the land owner retains all rights not inconsistent with that use. In effect, an easement …<\/p>\n