Easement by Prescription

An easement by prescription is a non-possessory interest in land acquired through long-continued use that satisfies requirements analogous to those for adverse possession. Like adverse possession, the use must be open and notorious, adverse and hostile (without the owner's permission), and continuous and uninterrupted for the applicable statutory period. However, unlike adverse possession, prescriptive use does not result in ownership of the land but rather grants a right to use the land for a specific purpose.

A critical distinction from adverse possession is that prescriptive use need not be exclusive. Multiple users can independently acquire prescriptive easements over the same property, and a prescriptive easement can be acquired even though the owner and others also use the same path or area. This reflects the nature of an easement as a limited use right rather than an ownership claim.

Prescriptive easements most commonly arise in the context of road and pathway access, where neighbors or members of the public use a path across another's property for an extended period. The scope of a prescriptive easement is limited to the nature and extent of the historical use that gave rise to it. Expansion beyond the historical use is not permitted. Some jurisdictions recognize public prescriptive easements, though this remains controversial. Permission from the landowner defeats a prescriptive easement claim because it negates the hostility element; landowners sometimes post signs or grant written licenses to interrupt prescriptive use.