This article will provide a basic overview of Arizona law regarding the application of prescriptive easements.
Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.
What Is a Prescriptive Easement?
In its simplest terms, “an easement is a right that one person has to use the land of another for a specific purpose.” Ammer v. Ariz. Water Co., 169 Ariz. 205, 208, 818 P.2d 190, 193 (Ct. App. 1991) (citing Etz v. Mamerow, 72 Ariz. 228, 233 P.2d 442 (1951)).
There are numerous forms of easements in Arizona. For example, avigation easements allow unimpeded aircraft flights over one’s property; navigation easements provide the federal government the right to regulate navigable waters; light and air easements prohibit property owners from erecting structures that block sunlight from neighboring property owners; flowage easements give property owners the right in certain circumstances to flood another property owner’s land; utility easements are the statutory right for utility companies to erect telephone lines and other utility equipment to benefit the community; and conservation easements restrict the type and amount of development that takes place on a person’s property.
Easements can arise in a variety of ways including easements by prescription, easements implied from prior use, easements implied from necessity, statutory ways of necessity, and express easements. This article will focus on easements by prescription, i.e., “prescriptive easements.”
Typically, the main way a prescriptive easement arises is through a use adverse to the interests of the property owner. However, such an easement can also be created through an imperfect attempt to grant an easement. Paxson v. Glovitz, 203 Ariz. 63, 69, 50 P.3d 420, 426 (Ct. App. 2002); Restatement (Third) of Property (Servitudes) § 2.16(2) (2000) (hereinafter “Restatement”). As explained by and adopted in Paxson, the Restatement provides that a prescriptive easement is either:
1. [A] use that is adverse to the owner of the land or the interest in land against which the servitude is claimed, or
2. [A] use that is made pursuant to the terms of an intended but imperfectly created servitude, or the enjoyment of the benefit of an intended but imperfectly created servitude.
203 Ariz. at 69, 50 P.3d at 426 (quoting Restatement § 2.16). In contrast to a prescriptive easement under Section 2.16(1), which requires an adverse use, an easement under Section 2.16(2) only requires that there be an intended, but imperfectly created grant and that it be used openly for the statutory period. Id.
Elements of a Prescriptive Easement
As a general rule in Arizona, “easements by prescription are not favored because of the losses or forfeiture of rights inflicted upon others.” Krencicki v. Petersen, 22 Ariz. App. 1, 3, 522 P.2d 762, 764 (Ct. App. 1974). To that end, the party claiming an easement bears the burden of proof.
To gain a prescriptive easement under Arizona law, “a person must establish that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and that the use was hostile to the title of the true owner of the land.” Paxson, 203 Ariz. at 67, 50 P.3d at 424 (quoting Harambasic v. Owens, 186 Ariz. 159, 160, 920 P.2d 39, 40 (Ct. App. 1996)). Accordingly, three basic elements must be shown:
1. Actual and visible use, i.e., “open and notorious” use
2. Continuous use under a claim of right for at least ten years
3. Hostile use
Actual and Visible Use. This first element is relatively straightforward. The party claiming the easement must prove he or she used the property in a way that told the public the party was using the land as his or her own. In other words, a claimant may not secretly crawl across a small strip of somebody else’s land at 2:00 A.M. for 10 years and then claim she was “openly” using the land. The use must be consistent with the size, scope, and type of the land.
For example, if a party lays gravel for a driveway on another’s land and drives and parks on the driveway for 10 years, the use will be considered “conspicuous.” Inch v. McPherson, 176 Ariz. 132, 135, 859 P.2d 755, 758 (Ct. App. 1992). Under these facts, an Arizona court reasoned the “gravel area gave notice to the whole world that the party had taken the area of land for its own use.” Id.
; see Brown v. Ware, 129 Ariz. 249, 251, 630 P.2d 545, 547 (Ct. App. 1981) (reasoning that the unimpeded use of a gravel road for 24 years was “open, visible, and continuous”).
Continuous Use Under a Claim of Right for Ten Years. The second element appears even more elementary than the first: the claimant must continuously use the land under a “claim of right” for ten years. Of course, the law does not require the claiming party to use the land every second of every day for 10 years, but it will not allow a party to forego using the land for two years and then come back and start using it again and include the two years as part of the required ten. See, e.g., Fritts v. Ericson (Fritts II), 103 Ariz. 33, 36, 436 P.2d 582, 585 (1968) (“Continuity of possession does not mean that the adverse possessor must occupy every square foot of the land every moment. [I]t is sufficient that the use [the claimant] makes of it be a use suitable to the nature of the land or the use an owner would make of his identical land.”); England v. Ally Ong Hing, 105 Ariz. 65, 459 P.2d 498 (1969) (en banc) (rejecting a prescriptive easement claim because claimants did not use the property for ten or more years).
Notably, the use need not have been carried out by the same person for the entire ten years. Ammer, 169 Ariz. at 209, 818 P.2d at 194 (citing Cheatham v. Vanderwey, 18 Ariz. App. 35, 499 P.2d 986 (1972)). The doctrine of “tacking” permits successive segments of use by different parties to be combined to establish the continuous ten-year period. Id.
(citation omitted). However, tacking is only allowed when there is “privity of estate” between the successive users. Id.
In the prescription context, privity of estate is created by a conveyance, agreement, or understanding that refers the successive adverse use to the original adverse use and is accompanied by a transfer of the use. Id.
(citing Santos v. Simon, 60 Ariz. 426, 138 P.2d 896 (1943)).
Moreover, unlike adverse possession, the use need not be “exclusive.” A person may establish a prescriptive right even though other people, including the holder of fee title in the servient tenement, use the property in the same way that he does. Id.
at 209, 818 P.2d at 194 (citation omitted). Accordingly, a claimant’s “use need only be exclusive in the sense that it is based upon a right that he claims as an individual rather than as a member of the general public.” Id.
Therefore, if a claimant proves all of the other elements, a prescriptive easement claim will not be found wanting if the claimant used the land with other parties.
Hostile Use. “Hostility” simply means that the use was without the owner’s permission, i.e., it was a trespass. The term “hostile . . . imports that the claimant is in possession as owner, in contradistinction to holding in recognition of or subordination to the true owner.” Gusheroski v. Lewis, 64 Ariz. 192, 198, 167 P.2d 390, 393 (1946). This element is very similar to “under a claim of right.” In essence, the claimant’s burden is to show that she was using the property in such a way as to assert to the public that the claimant herself owned the land. See Herzog v. Boykin, 148 Ariz. 131, 133, 713 P.2d 332, 334 (Ct. App. 1985) (“The mere use of another’s property is insufficient to create ownership or prescriptive use . . . without some additional act or circumstance indicating that the use is not merely permissive but hostile to the owner’s rights. Sufficient notice of a hostile and adverse use has been defined as acts of possession which ‘fly the flag’ over the land telling the owner the land is held under an adverse claim.”).
The claimant’s use must be adverse to the owner’s claim on the property. If the use is permissive, it cannot ripen into an easement by prescription because it is neither “hostile” nor “adverse” to the owner’s title. Herzog, 148 Ariz. 131, 713 P.2d at 334; see e.g., LaRue v. Kosich, 66 Ariz. 299, 305, 187 P.2d 642, 646 (1947) (recognizing the principle that where use of property is by express or implied permission, the use cannot ripen into a prescriptive right); Spaulding v. Pouliot, 218 Ariz. 196, 201, 181 P.3d 243, 248 (Ct. App. 2008) (“The mere use of another’s property for the required time is not alone sufficient to give rise to the presumption of a grant.” (quotations omitted)).
Because a claimant bears the burden of proof, this can present a problem as the claimant must prove a negative, i.e., that the use was without permission. To solve this problem, “once the party claiming the easement has shown that his or her use during the statutory period was open, visible, continuous, and unmolested, Arizona law presumes that the use was under a claim of right and not permissive.” Spaulding, 218 Ariz. at 201, 181 P.3d at 248 (quotation omitted); see Gusheroski, 64 Ariz. at 198, 167 P.2d at 393 (“Where the claimant shows an open, visible, continuous, and unmolested use of the property of another for a period sufficient to acquire title by adverse possession, the use is presumed to be under a claim of right and not by license of the owner.”). In other words, if all other elements are shown, a court will presume the claimant’s use was hostile, and the burden of proof will shift to the owner of the property to show the use was permissive. Spaulding, 218 Ariz. at 201, 191 P.3d at 248.
Notably, once a prescriptive period is met, a later attempt to create an express easement to use the property does not destroy the prescriptive easement already created. Id.
at 202, 181 P.3d at 249.
Interestingly, under Arizona law, a person need not know the property he is using belongs to another in order to establish a prescriptive easement. Ammer, 169 Ariz. at 212, 818 P.2d at 197 (citations omitted); see Inch, 176 Ariz. at 135, 859 P.2d at 758 (“[A] person who makes use of land mistakenly believing it to be his own meets the hostility element to procure a prescriptive easement.” (citations omitted)). Thus, a claimant need not prove a subjective belief of ownership or a subjective intent to acquire a prescriptive easement. Rather, he or she simply must prove the use of the land was not permissive and contrary to the true owner’s interests.
Scope of a Prescriptive Easement
If a party successfully proves the elements of a prescriptive easement, he or she will not gain title to the land but will obtain the right to use the land under the easement. The scope of the easement may not be broader than the use that established the easement. To that end, a prescriptive easement is “limited to the actual length and width of the road used.” Krencicki, 22 Ariz. App. at 3, 522 P.2d at 764. In other words, the prescriptive easement will only be the “beaten path,” i.e., the land actually used by the claimant, and not a broader physical boundary, such as a fence.
For example, suppose Simon walks across one path on Garfunkel’s land for 13 years and establishes a prescriptive easement for use of that path. Simon may not, in year 14, start driving a Monster Truck across Garfunkel’s property, nor may Simon walk across a different path. See Inch, 176 Ariz. at 134, 859 P.2d at 757 (holding that a family had a prescriptive easement to use their neighbor’s land to park their cars but could not erect a brick wall on the land).
For several reasons outside the scope of this article, a party may not acquire a prescriptive easement over a public highway, such as a railway. Tumacacori Mission Land Dev., Ltd. v. Union Pac. R. Co., 228 Ariz. 100, 102–04, 263 P.3d 649, 651–53 (Ct. App. 2011); see Cracchiolo v. Ariz., 6 Ariz. App. 597, 600, 435 P.2d 726, 729 (Ct. App. 1967) (reasoning that easements cannot be acquired over state-owned property, particularly if held for public use); Calhoun v. Moore, 69 Ariz. 402, 405, 214 P.2d 799, 801 (1950) (holding that one cannot adversely possess state land).
A Similar Doctrine: Adverse Possession
A doctrine very similar to easement by prescription is “adverse possession.” While the requirements for establishing a prescriptive easement and title by adverse possession are not identical, courts generally apply their principles interchangeably. Spaulding, 218 Ariz. at 203, 181 P.3d at 250; see, e.g., Lewis v. Farrah, 65 Ariz. 320, 323, 180 P.2d 578, 579 (1947) (“The elements necessary to establish [adverse possession and an easement by prescription] are substantially the same, and the rules of law relating to title by adverse possession are, in general, applicable to easements by prescription.”); Ammer, 169 Ariz. at 208, 818 P.2d at 193 (same); Tenney v. Luplow, 103 Ariz. 363, 367, 442 P.2d 107, 111 (1968) (applying prescriptive easement principles to adverse possession); Paxson, 203 Ariz. at 67, 50 P.3d at 424 (applying adverse possession law to prescriptive easements); Herzog, 148 Ariz. at 133, 713 P.2d at 334 (applying prescriptive easement principles to adverse possession).
The main distinction between adverse possession and a prescriptive easement is the end result: if a claimant successfully proves adverse possession, he or she will obtain full title to the land and will be able to prohibit the former owner from entering the property under trespass law. On the other hand, as discussed supra, a prescriptive easement merely grants the claimant a right to use the property within the scope of the easement. Under a prescriptive easement, no title is passed and the easement holder may not use the land in a manner broader than the easement. See Paxson, 203 Ariz. at 68, 50 P.3d at 425 (“Adverse possession leads to title, while a prescriptive easement leads to the nonexclusive right of continued use.” (citing Ammer, 169 Ariz. at 208, n. 1, 818 P.2d at 193, n. 1).
Moreover, the proof necessary to establish a prescriptive easement to use land is not the same as that to establish a claim of title by adverse possession. Inch, 176 Ariz. at 134–35, 859 P.2d at 757–58 (citing Etz, 72 Ariz. at 232, 233 P.2d at 445). “It is only the use to which the premises are put which must be shown to be adverse, open and notorious.” Id.
(quoting Etz, 72 Ariz. at 233, 233 P.2d at 445). Therefore, although plaintiffs in a prescriptive easement case must prove all of the above elements, “their burden of proof must be measured in terms of the right to use they claim, i.e., a very limited periodic use.” Id.
While some persons find prescriptive easements and adverse possession to be ludicrous—the thought of taking or using somebody else’s property without compensation is understandably frustrating—the doctrine is alive and well. If a property owner wants to keep a trespasser off of her land, she has every right to do so. However, if the trespasser continues to use the land for 10 or more years, the law may make it more difficult to do so.
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