Prescriptive Easements: More than “Easements by Adverse Possession”
While the vast majority of easements typically encountered by a real estate attorney in their day-to-day practice are express easements, arising pursuant to written — and, usually, recorded — instruments between the owners of the dominant (benefited) and servient (burdened) parcels of property, easements may also be implied or otherwise arise pursuant to applicable facts and circumstances. Thus, while the existence of a prescriptive easement (or an easement by way of necessity, which will be addressed in a subsequent article) is unlikely to be disclosed by a standard title search (unless such an easement is subsequently confirmed by a recorded judgement or an express easement), a careful property inspection and a thorough survey may make the existence or potential claim of the existence of such an easement evident.
Prescriptive easements are often erroneously referenced as easements arising by adverse possession, and, while many elements of prescriptive easements are akin to adverse possession claims, there are significant differences. Also, unlike adverse possession claims (and ways of necessity), which originally arose under common law but have since been codified, there is no statutory basis for prescriptive easement claims; prescriptive easements continue to exist solely under common law.
The decision of the Florida Supreme Court in Downing v. Bird, 100 So. 2d 57 (Fla. 1958), as clarified in Crigger v. Florida Power Corporation, 436 So. 2d 937 (Fla. 5th DCA 1983), confirms that the following elements are necessary to establish a prescriptive easement under Florida law:
1) The user has made a certain particular and actual use of lands owned by another;
2) Such use had been continuous and uninterrupted for a period of 20 years;
3) Such use has either been with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner;
4) Such use relates to a certain limited and defined area of land or, if for a right-of-way, the use is of a definite route with a reasonably certain line, width, and termini; and
5) Such use has been adverse to the owner; that is a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner; b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment; and c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made.
In that case, Downing had filed a lawsuit against Bird and the City of Homestead seeking removal of paving from a parcel of land that she alleged was owned by her. Downing claimed that the city and Bird had constructed an asphalt road upon her property without her permission and that, when her husband had constructed a barrier across the road, he had been arrested. Downing requested that the defendants be required to remove the encroachment and that she be awarded damages and other relief. One of the defenses raised by the city was that it had acquired a prescriptive easement with respect to the disputed property.
The Downing court reasoned that the modern trend is to treat the acquisition of prescriptive rights as being rights acquired by methods substantially similar to those by which title is acquired by adverse possession. The court further noted that in either prescription or adverse possession, the right is acquired only by actual, continuous, uninterrupted use by the claimant of the lands of another, for a prescribed period. In addition, the use must be adverse under claim of right and must either be with the knowledge of the owner or so open, notorious, and visible that knowledge of the use by and adverse claim of the claimant is imputed to the owner. “In both rights, the use or possession must be inconsistent with the owner’s use and enjoyment of his lands and must not be a permissive use, for the use must be such that the owner had a right to a legal action to stop it, such as an action for trespass or ejectment.”1 “Also, the limits, location, and extent of his occupation must be definitely and clearly established by affirmative proof and cannot be established or extended by presumption.”2
The court further explained that:
[I]t was necessary for the defendants to allege and, by clear and positive proof, to prove: (1) that the public had the continued and uninterrupted use or enjoyment of the plaintiff’s lands for a roadway for a period of at least 20 years prior to the barricading thereof, (2) the identity of the roadway, i.e., its route, termini and width, and (3) that the use or enjoyment was adverse or under a claim of right.3
Because the city’s answer did not allege that the use by the public was adverse, the court reversed the trial court’s finding in favor of the city but suggested that the city be given the opportunity to amend its answer. The court further noted that the answer did not properly identify the route, termini, location, and width of easement claimed by the city. Finally, the court found that “there is nothing to show that the use made by the public was inconsistent with the rights of the owner to his use and enjoyment in the land, which supports rather than overcomes the presumption that any such use was permissive.”4
In reaching its decision, the Downing court focused on the character of the public’s usage of the defendant’s property. Citing J.C. Vereen & Sons, Inc. v. Houser, 167 So. 45 (Fla. 1936), which, in turn, had cited the Alabama Supreme Court’s decision in Jesse French Piano & Organ Co. v. Forbes, 29 So. 683 (Ala. 1901), the court reasoned that, “if the use of an alleged easement is not exclusive and not inconsistent with the rights of the owner of the land to its use and enjoyment, it would be presumed that such use is permissive rather than adverse.” The Downing court continued by further referencing the Jesse French Piano decision for the proposition that “one circumstance always considered is whether the use is against the interest of the party suffering it or injurious to him.”
In J.C. Vereen, the plaintiff had sought an injunction requiring the defendant to remove the eaves of a house overhanging the plaintiff’s property. At trial, defendant offered no evidence that the easement had existed for the full prescriptive period, and the plaintiff’s testimony indicated that the overhang had not existed for more than three years. Accordingly, the court held that no prescriptive easement could exist.
Thus, Florida courts recognize the general presumption that usage of property belonging to another is permissive rather than adverse; however, such a presumption only arises when the usage is not exclusive and is not inconsistent with the use and enjoyment of the land by the owner. On the other hand, if the claimant’s use is exclusive or inconsistent with the owner’s use and enjoyment of the land, the presumption of permissive use can be overcome. This position has been confirmed by a number of Florida cases, including Dan v. BSJ Realty, 953 So. 2d 640 (Fla. 3d DCA 2007). In that case, the court held that because the private road in question had been used by both parties “for the same common purpose — to access the rear of their respective warehouses,”5 the plaintiffs could not overcome the presumption of permissive use.
As was the case in both the Downing and J.C. Vereen decisions, the issue that is most frequently addressed by Florida courts in prescriptive easement cases is adversity. In footnote 16 of the Crigger decision, the court noted that, while adverse use is a complex concept, it does not require an evil intent, ill will, or hostility, in the belligerent sense, nor must the user intend to violate another’s rights. Instead, the court explained that adverse use must be made with an intentional disregard of the rights of the owner and under a claim of right, other than permission. In footnote 17 of the Crigger decision, the court noted that “an adverse possessor’s exclusive use excluding the owner from the land is necessarily always inconsistent with the owner’s right to use his land. Therefore, the element of exclusive possession serves well to give notice to the owner that the possessor’s possession is adverse to the owner’s ownership rights. The adverse use must be either exclusive of the owner or inconsistent with the owner’s use and enjoyment of his land.”6
In Hunt Land Holdings Company v. Schramm, 121 So. 2d 697 (Fla. 2d DCA 1960), the plaintiffs sought to require defendants remove a dam they had constructed across a drainage ditch. The ditch had been used for the drainage of farmlands for more than 45 years without objection. The parties were rival developers, and the defendant had constructed the dam in order to prevent plaintiffs from draining their property. The defendants argued that a prescriptive easement did not exist because the use of the ditch was not exclusive but was, rather, for the mutual benefit of all adjoining lands, and, therefore, was not adverse. Furthermore, the defendants argued that they were entitled to the benefit of the presumption that the use was permissive rather than adverse.
The Hunt Land Holdings court noted that, while possession must be exclusive in order to acquire title by adverse possession, a party may acquire a prescriptive right if the use is in common with the owner or the public. Additionally, the court agreed that an owner is entitled to a presumption of permissive use but concluded that such presumption “is not conclusive and is ineffectual in the face of facts which cause its dissipation.” The court held that
the presumption of permissive use may be overcome by knowledge imputed to the owner of adverse use by the party claiming the prescriptive right, that it is not necessary that this be done by declarations or assertions but it may be effectuated by use inconsistent with the owner’s use and enjoyment of his lands, and, further, that the use need not be exclusive but may be in common with the owner or the public.7
Thus, the court further found that the “long, continuous, uninterrupted, open, and notorious use of the ditch for drainage of farm lands, without any objection until the present dispute,”8 rebutted the presumption of permissive use. The court also noted that the defendants offered no evidence to show that their predecessors in title had ever given consent to the user but, instead, placed their reliance on the presumption that the use was permissive. On the other hand, the plaintiffs established that the use was so continuous, uninterrupted, open, and notorious as to impute to the owners of the land that the claimants were exercising their privilege under a claim of right adverse to the owners for the required period, and that the use was inconsistent with the rights of the owners to their use and enjoyment of the lands. Therefore, the court concluded that the plaintiffs had surmounted the defendants’ claim that they were entitled to a presumption of permissive (rather than adverse) use.
In another case, Florida Power Corporation v. McNeely, 125 So. 2d 311 (Fla. 2d DCA 1960), the McNeelys sued Florida Power Corporation (FPC) to require that FPC either remove its transmission lines and tower from their property or commence condemnation proceedings so that the McNeelys could receive appropriate damages. In 1939, FPC had cleared 100-foot right-of-way and suspended a power line above property later acquired by the McNeelys. In 1955, FPC replaced the old power line with a new one and constructed a steel tower upon the cleared portion of property. FPC made an unsuccessful attempt to contact the owner in 1939 and there were some negotiations in 1954 regarding the purchase of an easement. The McNeelys filed their lawsuit in 1957, so 20 years had elapsed since the original clearing of the right-of-way. The court focused upon the distinction between the acquisition of title by adverse possession and the acquisition of a prescriptive right, in which the essential element is the use of the privilege without actual possession.
Interestingly, the court distinguished the character of a power company’s utilization of a right-of-way from a railroad’s usage of its tracks by noting that “by the construction of its road bed, the installation of its ties and tracks and through its railroading operations, a railroad adversely using the land excludes the owner from and prevents his use of the land, and so exercises dominion over it and has possession.”9 However, a power line principally uses a space right-of-way and is not terrestrially located as is a railroad right-of-way. Beneath the suspended power line many activities entirely consistent with the use by the power company may be carried on. Accordingly, the court applied the 20-year period required in order to establish a prescriptive easement rather than the seven-year period required in order to establish title by adverse possession.
In Phelps v. Griffith, 629 So. 2d 304 (Fla. 2d DCA 1993), both parties had used Lemon Patch Road for over 20 years. After a dispute, Phelps fenced off Lemon Patch Road at the Griffith’s property line, and the Griffiths sued to establish a prescriptive easement. The court agreed with Phelps that the evidence pointed to a permissive, rather than an adverse, use of Lemon Patch Road. It is important to note that both parties had used the road for ingress and egress until Phelps closed the road. The court distinguished the Hunt Land Holdings case because unlike Hunt Land Holdings (in which the owner relied upon the presumption of permissive use), Phelps presented “implicit evidence of consent by the present and former owners of the land underlying Lemon Patch Road.”10 Additionally, the court was persuaded to overturn the finding of a prescriptive easement because there was no evidence that the Griffiths’ use of the road prevented the Phelps or their predecessors from doing anything they wanted to do with their property.
Several Florida courts have considered the state of mind necessary to establish adversity. In Guerard v. Roper, 385 So. 2d 718 (Fla. 5th DCA 1980), the parties owned adjoining parcels of property, and Guerard owned a disputed 25-foot strip that was used by her for ingress and egress to her property from a paved road. Roper also used the disputed strip for ingress and egress to his property. A dispute arose between the parties concerning Roper’s usage of the property, so she closed off Roper’s access to the road. Roper filed suit and, without stating any findings of fact, the trial court held that he was entitled to a prescriptive easement with respect to the disputed property. While it was clear that Roper and his predecessors had used the road in common with Guerard and her predecessors for over 20 years, the court cited Downing for the proposition that the use must be adverse (inconsistent with the owner’s use and enjoyment of his lands) rather than permissive, and the court found that the element of adversity was missing.
In particular, the court noted that “if the use is not exclusive and is not inconsistent with the rights of the owner of the land to its use and enjoyment, the presumption is that such use is permissive, rather than adverse.”11 The court further recognized that the word “hostility” is a word of art and does not mean belligerent or bellicose behavior. Nevertheless, the court found that nothing in the records established that Roper’s use of the property was inconsistent with the rights of the owner to her use and enjoyment of the land. The court also noted that “when a right of way is opened or maintained by the owner for his own benefit, and the claimant’s use of it appears to have been in common with him, the presumption arises that the use is in subordination and not adverse to the true title.”12 Thus, the court refused to find that a prescriptive easement had arisen in favor of Roper.
In Burdine v. Sewell, 109 So. 648 (Fla. 1926), Burdine’s landlord’s predecessor in title and Sewell entered into a written agreement with respect to the usage of an alley by Sewell. When Burdine entered into long-term lease, he constructed a wall that blocked Sewell’s access to the alley. Burdine claimed that the written agreement created a revocable license. Sewell contended that he had a prescriptive easement over the alley, but the court found that one who secures permission or authority to use property cannot claim such an easement.
The Florida Power Corporation v. Scudder, 350 So. 2d 106 (Fla. 2d DCA 1977), case considered an alleged easement to be utilized for ingress, egress, and utility services. In 1973, the Fulsoms acquired a land-locked tract of property and proceeded to construct a clay road from their property across land owned by the Scudders to an existing county road. While building the road, the Fulsoms requested FPC to install electrical service to service their property. An FPC representative mistakenly assumed that the Fulsoms owned or had the legal right to use the Scudders’ property. Accordingly, FPC erected poles and distribution lines to service the Fulsoms’ property. Upon learning that the Fulsoms were building the road, the Scudders (who lived in New York) advised the Fulsoms that the road was in violation of their property rights. The Scudders had a fence erected and posted signs to protect their property. The Fulsoms disregarded those warnings, so the Scudders sued FPC and the Fulsoms. FPC and the Fulsoms counterclaimed that the Fulsoms had acquired a prescriptive right, an implied common law right of way or a statutory way of necessity that permitted them to utilize the Scudders’ property.
The trial court rejected the Fulsoms’ arguments that they were entitled to a prescriptive right or an implied common law right of way, but concluded that the Fulsoms were entitled to a statutory way of necessity for ingress and egress and electricity and telephone services. The court then awarded damages to the Scudders and ordered FPC to relocate the poles within the confines of the way of necessity. The appellate court found that the Fulsoms had failed to establish a prescriptive right because of the trial court’s finding that the usage of the Scudders’ land by the Fulsoms’ predecessors had been permissive rather than adverse.
The decision in Gibson v. Buice, 394 So. 2d 451 (Fla. 5th DCA 1981), provides a concise summary of the elements necessary to establish a prescriptive easement under Florida law. That case held that, to
establish an easement by prescription, a claimant must prove actual, continuous and uninterrupted use for the prescribed period of  years. The use must be adverse under a claim of right with the knowledge of the owner or must be so open, notorious, visible and uninterrupted that the knowledge of the use is imputed to the owner. Further, the use must be inconsistent with the owner’s use and enjoyment and must not be a permissive use….A prescriptive right of way cannot be acquired to pass over a tract of land generally but must be confined to a reasonably definite line and limited to the extent of the actual use. Thus, to claim a prescriptive easement, one must allege and prove its route, termini and width.13
In the Crigger case referenced above, the Criggers filed an action for inverse condemnation against FPC alleging that FPC had appropriated and was using a 100-foot right of way across their land without their permission or payment of any consideration to them. When the Criggers acquired their land in 1974, FPC had one set of poles and wires across the land. In 1979, FPC erected a second power line and removed the older line. FPC presented two affirmative defenses. First, it claimed that its usage of the property was pursuant to a recorded easement. Secondly, it claimed that it had acquired a prescriptive easement that precluded plaintiffs’ claim for inverse condemnation damages.
The trial court found that FPC had acquired a prescriptive easement, and the Criggers appealed. The appellate court traced the historical background of adverse possession and prescriptive easement claims through the Downing decision. The court then noted that, pursuant to Downing, “the user must establish that continuously for the entire prescribed period the use was so adverse, hostile and wrongful as to the owner that the owner had, but failed to assert during the prescribed period, a cause of action against the user to terminate the wrongful use.”14 The court noted that “this view encourages a neighborly consent and indulgence by owners to the use of their land by others by preventing such permissive use from ripening into a right in favor of the wrongful users as against the title of a friendly, congenial landowner.”15
Because prescriptive easement rights are “gained by an adverse user asserting a right based on his own wrongdoing, the law does not favor the acquisition of prescriptive rights and required a high burden as to allegations and proof in order to overcome historical and well-founded presumptions against wrongdoing.”16 Ultimately, the court held that FPC’s second affirmative defense failed to state a cause of action because it failed to allege any ultimate facts showing that FPC’s use was adverse to the owner and made without permission from the owner and, therefore, did not allege adversity. In fact, that affirmative defense made no reference whatsoever to the element of adversity. Furthermore, the evidence offered at trial was consistent with, and reinforced, the presumption of a permissive use. Specifically, a prior owner of a 1/8 interest in the property had expressly granted FPC the right to erect a powerline on the property. While that grant was ineffectual to bind the other co-tenants, it was indicative of the permissive nature of FPC’s usage of the property and, therefore, such usage was not adverse to the remaining owners. Additionally, the court noted that FPC unsuccessfully sought, on two occasions, to obtain an easement from the Criggers. The court held that an offer to purchase title or permission to use land from the true owner is evidence of an acknowledgment of the owner’s rights and a lack of adversity. Thus, the court held that FPC had not acquired prescriptive easement rights.
As a segue to an upcoming article on easements by way of necessity, the court in Sapp v. General Development Corporation, 472 So. 2d 544 (Fla. 2d DCA 1985), noted the distinction between ways of necessity and prescriptive easements in ruling that a land-locked owner either has a common law way of necessity or a statutory way of necessity, and the use under either way of necessity is not adverse and cannot form the basis for a prescriptive easement.
It is, therefore, imperative that real estate lawyers familiarize themselves with prescriptive easements, particularly when representing proposed purchasers or serving as title insurance agents. Since such easements are unlikely to be apparent from a review of a title chain, attorneys should carefully inspect the property or survey and, if appropriate, follow-up with appropriate additional inquiries to avoid a subsequent prescriptive easement claim. Likewise, since prescriptive easements are not based on written documents recorded in the public records, a prescriptive easement should not be relied upon for legal access and other matters until a court has confirmed that a prescriptive easement does, in fact, exist.
1 Downing, 100 So. 2d at 64.
3 Id. at 65.
4 Id. at 66.
5 Dan, 953 So. 2d at 642.
6 Crigger, 436 So. 2d at 945, n.17.
7 Hunt Land Holdings, 121 So. 2d at 701.
9 Florida Power Corporation, 125 So. 2d at 317.
10 Phelps, 629 So. 2d at 306.
11 Guerard, 385 So. 2d at 720.
12 Id. at 721.
13 Gibson, 394 So. 2d at 452 (citations omitted).
14 Crigger, 436 So. 2d at 942.
15 Id. at 943.
John Neukamm is a shareholder with the Mechanik Nuccio law firm in Tampa. He received a B.S. in accounting with high honors in 1981 and a J.D. with honors in 1984 from the University of Florida. He is a board certified real estate lawyer, a member of the American College of Real Estate Lawyers, and serves on the Florida Legal Education Association’s Executive Board. He is a former chair of The Florida Bar’s Real Property, Probate & Trust Law Section, and is a recipient of both the section’s Annual Service Award and its Lifetime Professionalism Award. He is also a former chair of the Hillsborough County Bar Association’s Real Property, Probate & Trust Law Section and received that section’s inaugural Outstanding Lawyer Award.
This column is submitted on behalf of the Real Property, Probate and Trust Law Section, Michael J. Gelfand, chair, and Jeff Goethe and Doug Christy, editors.