Rights in real property - Prescription

Learning Outcomes

This article explains prescription in real property law for MBE purposes, including:

• Defining prescription and situating prescriptive easements within the broader category of nonpossessory interests in land
• Identifying and articulating the required elements of a prescriptive easement—open and notorious, adverse, continuous use, and statutory period
• Comparing prescription with adverse possession and explaining how differences in exclusivity, scope of rights, and remedies appear in exam fact patterns
• Recognizing situations where prescriptive rights cannot arise, such as claims against government land, attempts to create negative easements, or use pursuant to an easement by necessity
• Evaluating how tacking, interruption, permission, and government or private defenses affect whether the prescriptive period is satisfied
• Determining the scope, beneficiaries, and transferability of a prescriptive easement once established, including public versus private rights and appurtenant versus in gross interests
• Analyzing long-term use fact patterns to distinguish prescriptive easements from licenses, implied easements, easements by estoppel, and contractual rights
• Applying these principles to multiple-choice questions by eliminating distractor answers that misstate elements, confuse prescription with adverse possession, or ignore defenses and limitations

MBE Syllabus

For the MBE, you are required to understand rights in real property acquired by prescription, with a focus on the following syllabus points:

• Recognizing the difference between prescription and adverse possession
• Identifying the elements required to acquire a prescriptive easement
• Distinguishing between types of prescriptive rights (easements vs. title)
• Understanding when prescriptive easements cannot be acquired
• Recognizing how tacking, interruption, and permission affect prescriptive claims
• Applying these principles to fact patterns involving long-term use of another’s land
• Distinguishing prescriptive easements from implied easements, easements by necessity, and irrevocable licenses

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is NOT a requirement for acquiring a prescriptive easement?
   1. Open and notorious use
   2. Use with the owner’s permission
   3. Continuous use for the statutory period
   4. Adverse use
2. A neighbor uses a path across another’s land openly, without permission, for 15 years (the statutory period). The owner objects for the first time in year 16. Has the neighbor acquired a prescriptive easement?
   1. Yes, because the use was open and adverse for the statutory period
   2. No, because the owner eventually objected
   3. No, because the use was not exclusive
   4. Yes, because the use was with the owner’s consent
3. Which of the following best distinguishes prescription from adverse possession?
   1. Prescription gives title to land; adverse possession gives only use rights
   2. Prescription requires exclusivity; adverse possession does not
   3. Prescription gives use rights (like easements); adverse possession gives title
   4. Both require the owner’s express permission

Introduction

Prescription in real property law refers to the acquisition of certain rights in land—most commonly easements—through long, continuous, and adverse use. Unlike adverse possession, which can result in acquiring title to land, prescription typically results in a right to use another’s land in a specific way, such as a right-of-way. The core idea is that the true owner’s failure to sue to stop an ongoing invasion of her rights within the limitations period transforms that invasion into a legally protected use right.

Unlike express easements, which must satisfy the Statute of Frauds (a writing signed by the grantor for interests of more than one year), prescriptive easements arise by operation of law from conduct over time. They are therefore often referred to as easements “by prescription” or “implied by prescription.”

Understanding the requirements for prescription and how it differs from adverse possession is essential for the MBE.

Key Term: Prescriptive Easement
A right to use another’s land for a specific purpose, acquired by continuous, open, and adverse use for the statutory period, without the owner’s permission.

Prescriptive easements usually involve a relationship between two parcels:

Key Term: Dominant Estate
The parcel that benefits from an easement (e.g., the parcel whose owner gets to use the path).

Key Term: Servient Estate
The parcel that is burdened by an easement (e.g., the parcel across which the path runs).

On the exam, the dominant estate owner is usually the party claiming a prescriptive easement, and the servient estate owner is usually the party trying to block the use.

Most prescriptive rights tested on the MBE are affirmative easements (rights to do something on another’s land, such as crossing a driveway). Negative easements—rights to stop the servient owner from doing something, like blocking light—must almost always be created expressly, not by prescription.

Key Term: Negative Easement
An easement that prevents the servient owner from using land in a particular way (e.g., blocking light or air), generally created only by express grant.

Prescriptive Easements: The Core Concept

A prescriptive easement is a nonpossessory right to use another’s land, acquired by meeting specific legal requirements over a statutory period. It is sometimes described as an “easement by prescription” or an “implied easement by prescription” because it arises by operation of law, not by written grant or reservation.

On the exam, you should assume that a prescriptive easement, once acquired, is a real property interest that:

• Runs with the land: it binds successors of the servient estate who take with notice
• Benefits the dominant estate (if appurtenant) or a person (if in gross), depending on the facts
• Has a scope defined by the type and extent of the historical use
• Is not freely revocable by the servient owner (unlike a license)

Most jurisdictions presume that when an easement benefits a parcel of land, it is appurtenant (tied to that land) rather than in gross (personal to an individual). This presumption applies equally to prescriptive easements: if the facts show a consistent use that plainly benefits a particular parcel, treat the prescriptive easement as appurtenant unless the question clearly indicates a purely personal right in one individual.

Because prescriptive easements arise without a deed, they are not usually recorded. The burden on the servient land nevertheless binds later purchasers who have notice—actual knowledge of the use, inquiry notice from visible conditions, or sometimes record notice if the easement was later recorded after being judicially recognized.

Elements Required for Prescription

To acquire a prescriptive easement, the following elements must be satisfied. These largely mirror the elements of adverse possession, except that exclusivity is not required.

• Open and notorious use
• Adverse and hostile use (non-permissive)
• Continuous and uninterrupted use
• Use for the statutory period

Some outlines also include “actual use” as a separate element. For easements, “actual use” simply means the claimant really used the route or facility in the way claimed; it is essentially built into the other elements.

Key Term: Open and Notorious Use
Use that is sufficiently visible and apparent that a reasonable inspection by the owner would reveal it.

The purpose of the “open and notorious” requirement is notice: the true owner should have a fair opportunity to learn of the use and to take action to stop it within the limitations period. Subsurface or hidden uses (like underground pipes) can still be open and notorious if there are surface indications, such as access covers or connections, that would alert a reasonable owner on inspection.

Key Term: Hostile Use
Use of land without the owner’s permission, under a claim of right, and inconsistent with the owner’s ability to fully control the property.

Hostility does not require bad faith, animosity, or even knowledge that the land belongs to someone else. Most jurisdictions apply an objective test: if the user is acting as if they have a right to use the land, and the use is not authorized by the owner, it is hostile. If the owner has actually granted permission, the use is not hostile.

Key Term: Continuous Use
Use that is consistent with the nature of the claimed easement for the entire statutory period (e.g., regular driveway use when needed, seasonal use of a beach path in summer).

Continuous does not mean constant. A driveway used whenever the owner leaves the house, or a pathway used each hiking season, can be “continuous” if that pattern is maintained over the entire statutory period. Short breaks that are consistent with how similar easements are ordinarily used do not destroy continuity.

Key Term: Statutory Period
The period set by state law during which the open, adverse, and continuous use must occur to ripen into a prescriptive right.

The statutory period is typically between 10 and 20 years and is often the same period used for adverse possession. For the MBE, the period is either specified in the facts or you are told that the use has continued “for the statutory period.” You are not expected to know specific year counts for particular states.

Open and Notorious Use in Detail

“Open and notorious” is judged from the standpoint of a reasonable owner. Relevant considerations include:

• Visibility: Is there a worn path, a driveway, a gate, or other visible signs?
• Regularity: Are the acts sufficiently frequent to draw attention over time?
• Type of land: What is conspicuous on a small suburban lot may differ from what is conspicuous on a large rural tract.

Subtle uses that leave no visible trace are problematic. For example, clandestinely running a cable under a neighbor’s land with no surface markers is not open and notorious. By contrast, a buried water line that connects visibly to the user’s house and to a meter at the boundary likely is.

If the true owner actually knows of the use (for example, because she watched the user drive across her land every day), some courts will relax the requirement of visible manifestations. For exam purposes, however, assume that underground or hidden uses count only if the facts mention visible clues that would alert a reasonable owner.

Hostile (Non-Permissive) Use in Detail

The hostility requirement is where many prescription fact patterns are won or lost.

• If the owner expressly says, “You may use my driveway,” the use is permissive and cannot be adverse.
• If there is a visible sign saying, “Hikers Welcome,” hikers’ use is permissive.
• Mere neighborly silence—knowing about the use but saying nothing—is not permission.

Different jurisdictions, especially for wild or unenclosed rural land, sometimes presume long-term use is permissive. However, for MBE purposes you should follow this general rule:

• Open, continuous use for many years, with no evidence of permission, is presumed adverse.
• Any explicit grant of permission (oral or written) defeats adversity until the relationship becomes adverse again.

The “claim of right” element does not require that the user subjectively intend to take another’s property. A mistaken belief that the way is on the user’s own land is usually still hostile, because the user is acting as if they have the right to make that use.

Continuous and Uninterrupted Use in Detail

Continuity is measured according to the nature of the easement claimed:

• A roadway to a residence: normal residential traffic patterns suffice.
• A path to a seasonal cabin: seasonal use is sufficient if repeated each season.
• A commercial driveway: regular use during business hours is enough.

The key is that the use must be ongoing and consistent, not sporadic or occasional. Using a path a few times over many years will not satisfy continuity.

“Uninterrupted” means that the servient owner does not successfully stop the use for a meaningful time before the period ends. Interruptions include:

• Erecting a fence or gate that actually prevents use
• Bringing a successful suit and obtaining an injunction
• Physically blocking the way so that the user cannot reasonably continue

If the user temporarily stops using the easement voluntarily (for example, an extended trip) but then resumes the same pattern, that usually does not restart the clock, so long as the overall pattern remains consistent with the use claimed.

Adverse Use and the Statutory Period

Key Term: Adverse Use
Use of land without the owner’s permission, in a manner inconsistent with the owner’s rights.

Adverse use must continue, unbroken by permission or effective interruption, throughout the statutory period. If the elements are satisfied for the entire period, the easement “ripens” automatically by operation of the statute of limitations; the user does not need a court order to acquire the right. Litigation may later be necessary to establish or confirm the easement, but the right technically arises once the period ends.

If the owner grants permission at any point before the statutory period is complete, the adverse use stops, and the limitations clock stops running. Any time that accrued before the permission generally cannot be counted if the relationship later becomes adverse again; the user must start a new prescriptive period.

If permission is granted after the statutory period has already run—after the easement has legally matured—the permission does not undo the vested easement. The relationship has already changed from trespass to a property right.

Tacking for Prescriptive Easements

Just as with adverse possession, successive periods of qualifying use can be added together, or “tacked,” if there is privity between the users.

Key Term: Tacking
Adding successive periods of qualifying use by different users to meet the statutory period, when the users are in privity (e.g., by deed or inheritance).

Privity for tacking purposes means a voluntary transfer of either the dominant estate or the claimed easement right from one user to the next. Common examples:

• Seller of the dominant parcel to buyer (by deed)
• Parent to child (by inheritance or devise)
• Co-owners reorganizing their interests

If A uses a neighbor’s path for five years and then sells his land to B, who continues the same use for another five years, B can tack A’s five years if all other elements are present. Together they satisfy a 10-year statutory period.

If there is no voluntary transfer between users—e.g., one trespasser abandons use and an unrelated person later starts using the path—there is no privity, and tacking is not permitted. Each user must satisfy the entire statutory period independently.

If there is a break in the adverse use (for example, the servient owner effectively blocks the path for a time), tacking will not help; the clock must restart after the interruption ends.

Permission Destroys Prescription

If the owner gives permission for the use, the use is not adverse or hostile, and the statutory period does not run. Permission can be express (“You may use my driveway whenever you like”) or clearly implied (e.g., a sign saying “Hikers Welcome”).

Importantly, mere silence or failure to object is not permission. For prescription, the usual presumption is that long-term open use is adverse unless the facts show that it is permissive.

Permission can take many forms:

• Oral permission (e.g., “Feel free to cross my land”)
• Written licenses (e.g., a signed agreement allowing use revocably)
• Posted signs inviting the public onto the land

Once the relationship becomes permissive, any prior adverse period is generally irrelevant for prescription. If the owner later revokes the license and the user continues to use the land without permission, a new prescriptive period may start at that point.

Some fact patterns combine permission with detrimental reliance, creating an easement by estoppel. That is a different doctrine: the user may get a right to continue using the land based on reliance, but not by prescription, and the required elements are different (a promise, foreseeable reliance, and substantial change in position).

Because the hostility element is so central, the examiners often include extraneous facts that distract from the simple question of whether the use was permissive. Focus on any clear statement of consent; if permission is present, the prescription claim fails, no matter how long the use continued.

Exclusivity Not Required

Unlike adverse possession, exclusivity is not required for a prescriptive easement. The user does not have to be the only one using the way.

• The owner of the servient estate can continue to use the path.
• Other people can use it too, as long as the claimant’s use still satisfies the elements.

What matters is that the claimant’s use is as of right, not as a member of the general public. If a path is open to the public and used by many people as a matter of public accommodation, it may be harder for a single individual to show a distinct private prescriptive right. Instead, the public as a group might acquire a public prescriptive easement.

A common trap: a shared driveway used openly by both neighbors can still give rise to a prescriptive easement in favor of one neighbor, even though the other neighbor (the owner of the servient estate) also uses it. The lack of exclusive use does not defeat the claim.

Prescription vs. Adverse Possession

Prescription and adverse possession share very similar requirements (open, hostile, continuous use for the statutory period), but their outcomes differ.

Key Term: Adverse Possession
The acquisition of title to land by continuous, open, exclusive, and adverse possession for the statutory period.

Key Term: Prescription
The acquisition of a right to use another’s land (not title) by continuous, open, and adverse use for the statutory period.

Key contrasts to remember:

• Type of right acquired:

  • Prescription: nonpossessory use right (usually an easement).
  • Adverse possession: full title to the land possessed.

• Scope of use versus possession:

  • Prescription: typically limited, defined use (e.g., crossing a path, laying pipes).
  • Adverse possession: possession of the land itself as if the true owner.

• Exclusivity:

  • Prescription: no exclusivity requirement; co-use with the owner is allowed.
  • Adverse possession: possession must be exclusive, excluding the true owner and the public at large.

• Other requirements sometimes added by statute:

  • Some states require adverse possessors to pay property taxes or to have color of title. These additional requirements generally do not apply to prescriptive easements.

On the MBE, if a party occupies land like an owner—building fences, living there, paying taxes—the issue is adverse possession. If the party merely uses a part of another’s land for a particular purpose, the issue is prescription.

Also be alert to the remedy sought. A claimant alleging adverse possession is seeking title or quieting of title. A claimant alleging prescription is seeking recognition of an easement (often articulated as “a right-of-way” or “a right to continue using the path”).

Limitations and Defenses

Several important limitations and defenses affect prescriptive claims.

Permission

As discussed above, if the servient owner grants permission, the use is not adverse and prescription cannot arise. Posting a sign such as “Hikers Welcome” or executing a license agreement converts potential adverse use into permissive use.

Permission can destroy a prescriptive claim in two ways:

• Preventing it from starting (initial use is permissive)
• Cutting off a period of ongoing adverse use before the statutory period runs

Once permission is revoked, later non-permissive use can begin a new prescriptive period, but prior permissive years do not count.

Interruption

If the owner successfully interrupts the use before the statutory period ends, the continuity requirement is broken and the prescriptive period resets. Interruption requires more than verbal protests; there must be an effective prevention of use.

Examples of interruption:

• Building a fence across the path that actually stops the user
• Locking a gate and refusing to provide a key
• Obtaining a court order enjoining the use

A brief, ineffective obstruction that the user quickly overcomes (for example, the user immediately removes a small obstacle) may not count as a legal interruption if the user is not practically prevented from using the way. For exam purposes, when the facts say the owner “blocked” the path and the user stopped using it, treat this as an interruption.

Government Land

Prescriptive rights generally cannot be acquired against government-owned land. The justification is that the statute of limitations does not run against the sovereign in the same way it does between private parties.

On the MBE, assume that long-term use of a path across public land does not create a prescriptive easement, even if all other elements would be satisfied between private owners. Some jurisdictions distinguish between governmental and proprietary functions, but those nuances are not typically tested.

Negative Easements

Negative easements cannot arise by prescription. Long-continued receipt of light, air, or view does not produce a prescriptive right to prevent a neighbor from building unless there is an express grant.

This is often tested using “ancient lights” fact patterns, where an owner claims a right to light based on long enjoyment of unobstructed sunlight or view. Under modern American law, no such prescriptive right exists without a written easement or a covenant.

Easements by Necessity

An easement by necessity does not itself ripen into a prescriptive easement. When the necessity ends, the easement by necessity terminates; continued use may then become adverse.

Suppose a landlocked parcel had an easement by necessity over a neighbor’s land to reach a road. A new public road is later built along another side of the landlocked parcel, ending the necessity. The easement by necessity ends at that moment. If the landowner continues to use the original route without permission, that use becomes adverse from that point forward and starts a new prescriptive period.

The key point: the life of an easement by necessity does not count toward a prescriptive period because the use during that time is legally privileged, not adverse.

Public Use

The public at large can sometimes acquire a prescriptive easement (for example, a public trail over private land) if the public’s use meets the prescription elements. The fact that many people use the path does not defeat adversity; it may instead support a public prescriptive right.

Common patterns include:

• A community path to a beach used openly by residents for decades
• A roadway used by the general public across private property where no public right of way was formally dedicated

The same elements apply: open and notorious, adverse (non-permissive), continuous use by the public for the statutory period. However, if the landowner clearly welcomes the public (e.g., “Public Welcome” signs), the use is permissive, and no prescriptive right arises.

Termination of Easements by Prescription

Prescription can both create and extinguish easement rights.

Once an easement (including a prescriptive easement) exists, it can be terminated by prescription if the servient owner interferes with the easement in a manner that is:

• Open and notorious
• Adverse to the easement holder’s rights
• Continuous and uninterrupted
• For the statutory period

If the servient owner blocks a path with a fence and keeps it blocked for the full statutory period, without the easement holder successfully asserting his right (e.g., by removing the fence, negotiating reinstatement, or obtaining an injunction), the easement can be terminated by prescription.

This is distinct from mere nonuse. Nonuse alone, even for a long period, does not terminate an easement. There must be conduct by the servient owner that is inconsistent with the continuance of the easement, maintained for the statutory period.

In exam fact patterns, look for:

• A clear act by the servient owner that prevents or contradicts the easement (fencing, building across the easement’s location)
• A description that such interference persisted for the statutory period without legal action by the easement holder

If both are present, consider termination by prescription as a likely answer.

Scope of a Prescriptive Easement

The scope of a prescriptive easement is defined by the character and extent of the use that gave rise to it. The easement holder acquires only what was actually used during the prescriptive period.

Typical rules:

• If a path was used only for pedestrian access, the easement is generally limited to foot traffic; converting it to heavy truck traffic may be beyond its scope.
• If a road was used by cars during the prescriptive period, reasonable increases in traffic volume related to normal development are usually allowed, as long as they do not unreasonably burden the servient estate.
• The easement cannot be used to benefit land beyond the dominant estate that gave rise to it. Using a prescriptive driveway easement to access an after-acquired parcel is generally outside the scope.

If the easement holder’s use exceeds the scope of the easement, the servient owner’s remedy is typically injunction and/or damages, not automatic termination of the easement.

Courts are generally flexible about technological change. For example, a right-of-way established when horses and carriages were common may be used by automobiles today, unless doing so would impose a substantially greater burden than reasonably contemplated by the original pattern of use.

Worked Example 1.1

A homeowner uses a shortcut path across a neighbor’s land to reach a bus stop. The homeowner walks this path daily, openly, and without permission for 12 years. The statutory period is 10 years. The neighbor never objects or gives permission.

Question: Has the homeowner acquired a prescriptive easement?

Answer:
Yes. The use was open, adverse, and continuous for more than the statutory period, and was not with permission. The homeowner now has a prescriptive easement to use the path, limited to the sort of pedestrian use established during the prescriptive period.

Worked Example 1.2

A group of hikers regularly cross a private field using a visible trail. The landowner posts a sign reading “Hikers Welcome.” After 15 years, the hikers claim a prescriptive easement.

Question: Will the hikers succeed?

Answer:
No. The posted sign shows the owner gave permission, so the use was not adverse or hostile. Permission prevents the prescriptive period from running. Prescription cannot arise where the use is permissive.

Worked Example 1.3

Owner of Parcel A has driven across a gravel lane on neighboring Parcel B to reach the public road for six years, openly and without permission. Owner sells Parcel A to Buyer, who continues using the gravel lane for another five years in the same way. The statutory period is 10 years. In year 12, B blocks the lane and sues to quiet title free of any easement.

Question: Has Buyer acquired a prescriptive easement?

Answer:
Yes. A’s six years of qualifying use can be tacked to Buyer’s five years because they are in privity (Buyer took Parcel A by deed). Together, they satisfy more than the 10-year statutory period of open, continuous, and adverse use. Buyer has a prescriptive easement over Parcel B for vehicular access along the lane.

Worked Example 1.4

For 25 years, Owner of Whiteacre has enjoyed unobstructed sunlight across Neighbor’s adjoining vacant lot, which lies to the south. Neighbor now plans to build a multi-story apartment building on the vacant lot that will block the sunlight. Whiteacre’s owner claims a prescriptive easement for light and seeks to stop the construction.

Question: Is there a prescriptive easement for light?

Answer:
No. This would be a negative easement (preventing Neighbor from building), and negative easements cannot be created by prescription. Long-continued enjoyment of light or view does not, by itself, give rise to a prescriptive right to stop construction. Without an express easement or enforceable covenant, Neighbor may build.

Worked Example 1.5

For 9 years, Neighbor has driven across Owner’s land to reach a public road, openly and without permission. The statutory period is 10 years. In year 10, Owner asks Neighbor to sign a written license agreement allowing use of the driveway “until revoked.” Neighbor signs and continues to use the driveway for 5 more years. Neighbor then claims a prescriptive easement.

Question: Has Neighbor acquired a prescriptive easement?

Answer:
No. Neighbor’s first 9 years were adverse, but the statutory period (10 years) had not yet run when Owner granted express permission via the license. That permission changed the use from adverse to permissive and stopped the prescriptive clock before it completed. The subsequent 5 years were permissive, not hostile, so they do not count. The earlier 9 years cannot be tacked to any later adverse period. No prescriptive easement has arisen.

Worked Example 1.6

For 20 years, a small town’s residents have used a visible dirt road across Farmer’s field to reach a river for recreation. Farmer has never posted signs or given express permission, but has watched the use without comment. The statutory period is 15 years. A new owner of the field erects a gate to block the road and claims there is no easement.

Question: Has a prescriptive easement arisen, and if so, who holds it?

Answer:
Likely yes, and the easement is held by the public at large. The community’s use of the road was open, notorious, and continuous for more than the statutory period, and there is no evidence of permission (no “public welcome” sign or similar). The public, as a group, has acquired a public prescriptive easement for travel to the river. The new owner, who bought subject to this visible use, takes the land burdened by that easement.

Worked Example 1.7

City owns a public park. For 30 years, local residents have walked along an informal path across one corner of the park as a shortcut between two streets. The city has never posted signs or granted explicit permission. The state’s statutory period for prescription is 20 years. Residents claim a prescriptive easement over the path.

Question: Will the claim succeed?

Answer:
No. Prescriptive easements generally cannot be acquired against government-owned land. Even though the use was open, continuous, and non-permissive for the statutory period, the statute of limitations does not run in favor of private parties against public land in this way. For exam purposes, assume no prescriptive easement arises against government land.

Worked Example 1.8

Millhouse has a recorded driveway easement over Lulu’s land. Lulu hates Millhouse and builds a locked fence across the driveway in 2000, preventing any use of it. The statutory period is 10 years. Millhouse protests once but does not sue or remove the fence. In 2015, Millhouse sues to enforce the easement.

Question: Is the easement still valid?

Answer:
No. Lulu’s interference was open, notorious, adverse to Millhouse’s easement rights, and continuous for more than the statutory period. Millhouse failed to protect his rights by removing the obstruction or suing in time. The easement has been extinguished by prescription due to the servient owner’s long-term adverse interference.

Exam Warning

Exam Warning: Do not confuse the requirement of exclusivity for adverse possession with prescription. Prescriptive easements do not require exclusive use—shared use can still meet the requirements. Focus instead on whether the use was open, adverse (non-permissive), and continuous for the statutory period.

Also pay close attention to any explicit permission in the facts. A single sentence indicating consent—an oral statement, a posted sign, a written license—often decides the case against prescription, regardless of the length of use.

Revision Tip

Revision Tip: Always check whether the use was with or without the owner’s permission. Any fact showing permission—signs welcoming users, written licenses, or explicit verbal consent—defeats a claim of prescription until and unless the relationship becomes adverse again. Then practice distinguishing:

• Permission plus detrimental reliance → possible easement by estoppel
• Long, non-permissive use → possible prescriptive easement

Key Point Checklist

This article has covered the following key knowledge points:

• Prescription allows acquisition of use rights (not title) over another’s land by long, open, and adverse use.
• The elements for a prescriptive easement are open and notorious use, adverse (hostile) use, continuous use, and satisfaction of the statutory period.
• Continuous use means use consistent with the claimed right, not constant occupation; tacking is permitted when there is privity between successive users.
• Permission from the owner defeats prescription and resets the clock; mere failure to object is not permission.
• Exclusivity is not required for prescriptive easements, unlike adverse possession.
• Negative easements and rights against government land generally cannot be acquired by prescription.
• Public prescriptive easements can arise where the public uses private land in an open, adverse, and continuous way for the statutory period.
• An existing easement can be extinguished by the servient owner’s adverse interference for the statutory period (termination by prescription).
• Nonuse alone does not terminate an easement; there must be adverse conduct by the servient owner (for prescription) or clear abandonment.
• The scope of a prescriptive easement is limited to the nature and extent of the use that ripened into the easement; excessive use is restrained by injunction and damages, not automatic termination.
• Easements by necessity do not ripen into prescriptive easements, but once necessity ends, continued non-permissive use can start a new prescriptive period.
• The key distinction between adverse possession and prescription is the nature of the right acquired: title versus a nonpossessory use right.

Key Terms and Concepts

• Prescriptive Easement
• Dominant Estate
• Servient Estate
• Negative Easement
• Open and Notorious Use
• Hostile Use
• Continuous Use
• Statutory Period
• Tacking
• Adverse Use
• Adverse Possession
• Prescription