Daily Development for
Thursday, January 30, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENT; CREATION; PRESCRIPTION; HOSTILITY: Even in open country, adverse claimant's use of an easement over land of another in open, visible, continuous and unmolested manner establishes presumption that claimaint's use is hostile and notorious, as opposed to being permissive, and landowner's failure to rebut presumption allows court to find existence of easement by prescription.

Harambasic v. Owens, 920 P.2d 39 (Ariz. Ct. App. 1996).

The plaintiff in this case accessed its own property by a road over defendant's property for a period from 1973 until at least 1984. The Arizona court affirmed an existing rule of law that when a person uses an easement over the land of another in an open, visible, continuous, and unmolested manner, a presumption arises that the use is hostile to the title of the owner and under a claim of right, rather than permissive. As the "hostile" use here had extended for 10 years, and no evidence was presented to rebut such a presumption, it was sufficient to establish a prescriptive easement in favor of the plaintiff.

Comment: This land appears to have been unfenced land in rough country. In some other mountain west states, the courts presume that crossing unfenced land is done with the permission of the landowner, as neighborly accomodation is a necessity in such areas. But perhaps the Arizona rule here more closely tracks modern realities. People aren't quite as "neighborly" as they once were, and more able to keep track of intrusions across their boundaries. Where there is no objection to a use for the prescriptive period, then perhaps there has been tacit recognition by the community that an easement exists.

Bottom line: Being "neighborly" ain't safe. Put your permission in writing.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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