[0:01] Welcome to Resource Law and Regulation with Peter Scott.
[0:06] Welcome to Resource Law and Regulation with Peter Scott. Peter is the founder of Scott
[0:10] Law in Boseman, Montana, where he represents landowners, businesses, utilities, and local
[0:16] governments and matters involving water rights, land use, and natural resource regulation across
[0:21] the region. On this show, we break down how those legal systems actually work in practice.
[0:27] I'm Shameika Rhymes, and in today's episode, we're discussing how easement rights can sometimes
[0:33] be created over time through long-term use, including what legal standards apply,
[0:38] and how these disputes often develop between neighboring property owners. Welcome back, Peter.
[0:43] Thank you, Shameika. It's a pleasure to be here. Well, Peter, what is a prescriptive easement,
[0:48] and how does it differ from a traditional easement created through a formal agreement?
[0:53] Well, that's it. There is no formal agreement, so that's the first major difference.
[0:58] Prescription, another term you hear often is adverse possession, so the two are used
[1:04] often interchangeably. A prescription arises through a period of use that goes on for an extended
[1:12] period of time without objection from another property owner. That's the general idea behind
[1:19] a prescription, and as opposed to an express easement where you negotiate a contract and
[1:24] one property owner grants conveys a right or rights to their neighbor to use the property for some
[1:33] purpose. Okay, so what legal requirements have to be met for someone to claim a prescriptive easement
[1:39] in Montana? All right, so I want to distinguish between adverse possession of property where you take
[1:44] the title and a prescriptive easement where you're just obtaining a limited right to the use of somebody's
[1:50] property. In the first example where you're taking title, you have to, the elements are similar,
[1:56] but there's some additional ones. In the case of an easement, the use has to be hostile,
[2:02] and that doesn't mean at gunpoint, it means without permission. It has to be against the interests of the
[2:08] other party. It has to be continuous, so it's not it's not good to show up once every couple years and act
[2:17] like you're creating an easement. It has to be open and notorious, obvious, available for anybody who's
[2:25] paying attention, you know, anything that a prudent landowner would notice, some, you know,
[2:32] somebody's been sleeping in my bed. So you have to notice this, and if it's not something that an
[2:38] ordinary prudent person would notice, then it doesn't meet that standard. I think that covers it. Open
[2:44] notorious, continuous, non permissive or hostile. Those are the main elements for establishing a
[2:50] prescriptive easement. Okay. Well, how long does someone typically need to use another person's property
[2:56] before a prescriptive easement claim can become an issue? The statute says five years. It can of course
[3:04] be longer. There's a concept called privity of title that comes into play or sometimes called
[3:11] tacking where the prior owner was doing it, they might have done it for three years, drove, drove across
[3:19] the property for three years. They sell it to me. If I continue the practice, I can tack on the three
[3:25] years from my predecessor, who I'm in privity with. Now, if there are gaps in that use, so an intervening
[3:33] property owner didn't use it, then you can't reach back and grab another three years and match them
[3:38] up. But five years is the minimum for prescription. So how does Montana distinguish between permitted use
[3:46] of property and use that could eventually lead to a prescriptive easement claim? Well, I think the most
[3:53] common point of contention in these cases is whether the use was permissive. Did the landowner
[4:03] grant permission to the person claiming a prescriptive easement? Or was it in fact hostile?
[4:13] And that's often where the dispute arises. Usually, it's usually not that hard to show five years.
[4:19] This road's been here since so and so. It's been here long enough. That sort of thing is generally
[4:25] relatively easy to show. Continuous and open and notorious. If there's a road on the property that
[4:31] goes to my property, that's pretty open. You can see the road going to my property. If I drive
[4:37] across it regular intervals, I don't have to drive up and down for five years. But if I use it for
[4:43] access routinely, that's usually pretty easy to show where most people run into a dispute is whether
[4:50] that use was granted to them by permission or whether they did it against the wishes of the other
[4:57] person. So I think that's really where it comes comes down to. Well, what kinds of evidence become
[5:03] important and determining whether a prescriptive easement legally exists? Well, any kind of written
[5:10] correspondence I'm thinking in terms of the defense to it. You know, if these days it might be an
[5:17] email could have been done previously. I've frequently advised people in cases where a question arises
[5:25] to send the person a note saying, I don't mind if you use this, but if those, you know, if that changes
[5:33] all that you know, is then you've got a record that you've granted permission. Now, you don't always
[5:40] have that. So it depends which side you're on as to which evidence you're looking for. But in my prior
[5:45] example, if there's a longstanding road there, you might be able to get aerial photos or other,
[5:52] you know, other evidence showing that the road was in use throughout that period of time. So those
[5:58] are general. And then of course, testimony from people who know, prior owners of either parcel
[6:04] come into play. I've gone out and got affidavits from a prior owner, you know, to demonstrate that
[6:12] the person didn't use it during their period of ownership. And that creates that gap I was referring
[6:19] to. So testimony, photos, written records, those are, those are best. What a text message count on
[6:25] the written records. It would. Okay. Yeah, I don't like it. None of the lawyers I work with enjoy
[6:32] having to subpoena phone records. It's hard to do and phone companies tend to pay little attention
[6:38] to those things. But if you can't, if you have it on your phone, I often get screenshots of a text
[6:46] message string, which we use in court. So yes, that can do it. It's just harder to preserve is all.
[6:53] Gotcha. So what actions can a property owner take to prevent long term use of their land from
[6:59] eventually creating legal rights for someone else? Yeah. Well, granting permission is one.
[7:04] Making it clear that the use is permissive. Stopping the use, putting up a gate, and just telling the
[7:11] person to stay out, you know, I'm evicting you. The, you know, if somebody states or makes clear
[7:20] that their use is permit, that they're allowed to use this. I've been doing this for a while now,
[7:25] and I have the right. I'm going to continue doing it. Really, your only option then,
[7:32] the only prudent thing to do is file a quiet title action challenging that claim. You can't allow
[7:39] somebody to continue using the property after you know that it's in dispute. That is the definition
[7:45] of hostile. Okay. Well, can you walk us through an example of a dispute where a claim of prescriptive
[7:53] easement became a major legal issue? And what made that situation especially complicated?
[7:59] Yeah. I gave this some thought. There's a couple of examples come to mind. First, I'd like to point
[8:05] out that you can also extinguish an easement by prescription. So if one person has an express
[8:12] right to drive across my property, and I tell them to shove off and I put in a gate and I lock it,
[8:20] and I tell them, I don't care if you have an easement, you're out of here, and they let five years go
[8:25] by, then that easement can go away. I can, I can have it removed from title through a legal action.
[8:32] So it's important to know this, this concept of prescription works both ways. One case I thought
[8:39] of really had to do more with the scope of the easement. One thing that's important about prescriptive
[8:45] easements is they only apply to the use made of it. So in one case, large ranch property had
[8:52] gone up for sale, and the seller wanted to advertise access. He had several points of access,
[9:00] but he wanted to advertise access from the most convenient point of ingress was a state highway,
[9:08] and so he pointed out long-standing use of the property. The problem I think he had, and I was
[9:17] defending the property owner that he was attempting to establish an easement across,
[9:23] was the use he had made of the property was for hunting, and a couple times a year for
[9:30] driving cattle. The use he wanted to make of the property was residential development-based use.
[9:40] He wanted his buyer to have the right to come in and out to build a house and do something different
[9:47] with the easement. So what we said is, look, we're not disputing that you've established a right to
[9:53] come up here and hunt, or to drive your cattle. However, before we're going to agree to that, you're
[10:00] going to agree to an express easement that limits the scope of this use. If someone wants to build a
[10:06] house, that's fine, but they can drive up the road and access through the secondary point of ingress.
[10:13] And that got testy, and it was challenging, but that scope of easement question, it isn't just
[10:20] specific to prescriptions. It comes up a lot in express easements as well. Okay. So what options
[10:26] exist if a property owner wants to challenge a claim that someone has acquired easement rights
[10:31] over their land? Well, I may have jumped ahead because the main option really is to go to court.
[10:39] If you can't negotiate some kind of a resolution like a limited access or permissive access,
[10:45] a license is essentially permission to use the property. Licenses are generally specific to the person
[10:52] and something that I should say about easements is generally an easement is considered
[10:58] in-rem or that means part of the title. It's a pertinent to the title, and when you sell the property,
[11:05] it goes with you. If you hold a license and you sell the property, the new owner doesn't have the
[11:10] license. If you hold an easement in-rem and sell the property, the new owner has the easement. Same with
[11:15] a prescription by privity. If you have a prescription, even if you haven't gone to court and had it
[11:21] declared, the next person has the right of use, and that's often where the dispute rises.
[11:26] You know, two neighbors get along, they understand each other. A new owner comes in and says,
[11:31] well, I'm going to build three more houses up here and the person who owns the road says, no,
[11:37] no, you're not. Not on this, not using this road. That's a common dispute.
[11:44] So what kind of records or property history become most important once a prescriptive easement claim
[11:49] is being disputed? I know. In the episode previously, we talked about, you know, having those older
[11:55] witnesses. Yeah, again, people with personal knowledge, reaching back in time, and keep in mind,
[12:03] we're talking about a five-year look-back period of continuous use. So if you went to court and said
[12:11] between 1975 and 1980, this was used by a prior property owner, my response would be, so what?
[12:21] There's a huge gap in use. It's not continuous. Therefore, you don't have a prescriptive easement.
[12:28] So really, you know, unlike water rights, which we've discussed before, we're not always looking back
[12:35] at historic records here. It's the last five years, or some period of time, perhaps a little longer
[12:42] than that. And, you know, it's not as hard to find witnesses there in that time frame, typically.
[12:49] In the case I brought up before, you know, we knew who the hunting guides were. We knew who the
[12:56] hired hands that drove the cattle were. We could talk to people and find out, how was this used?
[13:01] How often was it used? What are the circumstances? So you're not always desperate for finding,
[13:09] you know, finding somebody way back in history to tell you how it was used, as you often are in water
[13:14] rights. Thank you so much, Peter, for breaking this down for us today about prescriptive easements.
[13:19] I've learned a lot. I enjoy it, as always, Shameika. Thank you very much. Well, that is it for today's
[13:25] episode of Resource Law and Regulation with Peter Scott. If you'd like to learn more about Peter
[13:30] Scott and his work helping clients navigate land use, water rights, and natural resource law
[13:36] in Montana, you can visit scott-law.com. Thank you for listening and be sure to like,
[13:42] subscribe to the show, and share this episode with someone who might need it.
[0:06] Welcome to Resource Law and Regulation with Peter Scott. Peter is the founder of Scott
[0:10] Law in Boseman, Montana, where he represents landowners, businesses, utilities, and local
[0:16] governments and matters involving water rights, land use, and natural resource regulation across
[0:21] the region. On this show, we break down how those legal systems actually work in practice.
[0:27] I'm Shameika Rhymes, and in today's episode, we're discussing how easement rights can sometimes
[0:33] be created over time through long-term use, including what legal standards apply,
[0:38] and how these disputes often develop between neighboring property owners. Welcome back, Peter.
[0:43] Thank you, Shameika. It's a pleasure to be here. Well, Peter, what is a prescriptive easement,
[0:48] and how does it differ from a traditional easement created through a formal agreement?
[0:53] Well, that's it. There is no formal agreement, so that's the first major difference.
[0:58] Prescription, another term you hear often is adverse possession, so the two are used
[1:04] often interchangeably. A prescription arises through a period of use that goes on for an extended
[1:12] period of time without objection from another property owner. That's the general idea behind
[1:19] a prescription, and as opposed to an express easement where you negotiate a contract and
[1:24] one property owner grants conveys a right or rights to their neighbor to use the property for some
[1:33] purpose. Okay, so what legal requirements have to be met for someone to claim a prescriptive easement
[1:39] in Montana? All right, so I want to distinguish between adverse possession of property where you take
[1:44] the title and a prescriptive easement where you're just obtaining a limited right to the use of somebody's
[1:50] property. In the first example where you're taking title, you have to, the elements are similar,
[1:56] but there's some additional ones. In the case of an easement, the use has to be hostile,
[2:02] and that doesn't mean at gunpoint, it means without permission. It has to be against the interests of the
[2:08] other party. It has to be continuous, so it's not it's not good to show up once every couple years and act
[2:17] like you're creating an easement. It has to be open and notorious, obvious, available for anybody who's
[2:25] paying attention, you know, anything that a prudent landowner would notice, some, you know,
[2:32] somebody's been sleeping in my bed. So you have to notice this, and if it's not something that an
[2:38] ordinary prudent person would notice, then it doesn't meet that standard. I think that covers it. Open
[2:44] notorious, continuous, non permissive or hostile. Those are the main elements for establishing a
[2:50] prescriptive easement. Okay. Well, how long does someone typically need to use another person's property
[2:56] before a prescriptive easement claim can become an issue? The statute says five years. It can of course
[3:04] be longer. There's a concept called privity of title that comes into play or sometimes called
[3:11] tacking where the prior owner was doing it, they might have done it for three years, drove, drove across
[3:19] the property for three years. They sell it to me. If I continue the practice, I can tack on the three
[3:25] years from my predecessor, who I'm in privity with. Now, if there are gaps in that use, so an intervening
[3:33] property owner didn't use it, then you can't reach back and grab another three years and match them
[3:38] up. But five years is the minimum for prescription. So how does Montana distinguish between permitted use
[3:46] of property and use that could eventually lead to a prescriptive easement claim? Well, I think the most
[3:53] common point of contention in these cases is whether the use was permissive. Did the landowner
[4:03] grant permission to the person claiming a prescriptive easement? Or was it in fact hostile?
[4:13] And that's often where the dispute arises. Usually, it's usually not that hard to show five years.
[4:19] This road's been here since so and so. It's been here long enough. That sort of thing is generally
[4:25] relatively easy to show. Continuous and open and notorious. If there's a road on the property that
[4:31] goes to my property, that's pretty open. You can see the road going to my property. If I drive
[4:37] across it regular intervals, I don't have to drive up and down for five years. But if I use it for
[4:43] access routinely, that's usually pretty easy to show where most people run into a dispute is whether
[4:50] that use was granted to them by permission or whether they did it against the wishes of the other
[4:57] person. So I think that's really where it comes comes down to. Well, what kinds of evidence become
[5:03] important and determining whether a prescriptive easement legally exists? Well, any kind of written
[5:10] correspondence I'm thinking in terms of the defense to it. You know, if these days it might be an
[5:17] email could have been done previously. I've frequently advised people in cases where a question arises
[5:25] to send the person a note saying, I don't mind if you use this, but if those, you know, if that changes
[5:33] all that you know, is then you've got a record that you've granted permission. Now, you don't always
[5:40] have that. So it depends which side you're on as to which evidence you're looking for. But in my prior
[5:45] example, if there's a longstanding road there, you might be able to get aerial photos or other,
[5:52] you know, other evidence showing that the road was in use throughout that period of time. So those
[5:58] are general. And then of course, testimony from people who know, prior owners of either parcel
[6:04] come into play. I've gone out and got affidavits from a prior owner, you know, to demonstrate that
[6:12] the person didn't use it during their period of ownership. And that creates that gap I was referring
[6:19] to. So testimony, photos, written records, those are, those are best. What a text message count on
[6:25] the written records. It would. Okay. Yeah, I don't like it. None of the lawyers I work with enjoy
[6:32] having to subpoena phone records. It's hard to do and phone companies tend to pay little attention
[6:38] to those things. But if you can't, if you have it on your phone, I often get screenshots of a text
[6:46] message string, which we use in court. So yes, that can do it. It's just harder to preserve is all.
[6:53] Gotcha. So what actions can a property owner take to prevent long term use of their land from
[6:59] eventually creating legal rights for someone else? Yeah. Well, granting permission is one.
[7:04] Making it clear that the use is permissive. Stopping the use, putting up a gate, and just telling the
[7:11] person to stay out, you know, I'm evicting you. The, you know, if somebody states or makes clear
[7:20] that their use is permit, that they're allowed to use this. I've been doing this for a while now,
[7:25] and I have the right. I'm going to continue doing it. Really, your only option then,
[7:32] the only prudent thing to do is file a quiet title action challenging that claim. You can't allow
[7:39] somebody to continue using the property after you know that it's in dispute. That is the definition
[7:45] of hostile. Okay. Well, can you walk us through an example of a dispute where a claim of prescriptive
[7:53] easement became a major legal issue? And what made that situation especially complicated?
[7:59] Yeah. I gave this some thought. There's a couple of examples come to mind. First, I'd like to point
[8:05] out that you can also extinguish an easement by prescription. So if one person has an express
[8:12] right to drive across my property, and I tell them to shove off and I put in a gate and I lock it,
[8:20] and I tell them, I don't care if you have an easement, you're out of here, and they let five years go
[8:25] by, then that easement can go away. I can, I can have it removed from title through a legal action.
[8:32] So it's important to know this, this concept of prescription works both ways. One case I thought
[8:39] of really had to do more with the scope of the easement. One thing that's important about prescriptive
[8:45] easements is they only apply to the use made of it. So in one case, large ranch property had
[8:52] gone up for sale, and the seller wanted to advertise access. He had several points of access,
[9:00] but he wanted to advertise access from the most convenient point of ingress was a state highway,
[9:08] and so he pointed out long-standing use of the property. The problem I think he had, and I was
[9:17] defending the property owner that he was attempting to establish an easement across,
[9:23] was the use he had made of the property was for hunting, and a couple times a year for
[9:30] driving cattle. The use he wanted to make of the property was residential development-based use.
[9:40] He wanted his buyer to have the right to come in and out to build a house and do something different
[9:47] with the easement. So what we said is, look, we're not disputing that you've established a right to
[9:53] come up here and hunt, or to drive your cattle. However, before we're going to agree to that, you're
[10:00] going to agree to an express easement that limits the scope of this use. If someone wants to build a
[10:06] house, that's fine, but they can drive up the road and access through the secondary point of ingress.
[10:13] And that got testy, and it was challenging, but that scope of easement question, it isn't just
[10:20] specific to prescriptions. It comes up a lot in express easements as well. Okay. So what options
[10:26] exist if a property owner wants to challenge a claim that someone has acquired easement rights
[10:31] over their land? Well, I may have jumped ahead because the main option really is to go to court.
[10:39] If you can't negotiate some kind of a resolution like a limited access or permissive access,
[10:45] a license is essentially permission to use the property. Licenses are generally specific to the person
[10:52] and something that I should say about easements is generally an easement is considered
[10:58] in-rem or that means part of the title. It's a pertinent to the title, and when you sell the property,
[11:05] it goes with you. If you hold a license and you sell the property, the new owner doesn't have the
[11:10] license. If you hold an easement in-rem and sell the property, the new owner has the easement. Same with
[11:15] a prescription by privity. If you have a prescription, even if you haven't gone to court and had it
[11:21] declared, the next person has the right of use, and that's often where the dispute rises.
[11:26] You know, two neighbors get along, they understand each other. A new owner comes in and says,
[11:31] well, I'm going to build three more houses up here and the person who owns the road says, no,
[11:37] no, you're not. Not on this, not using this road. That's a common dispute.
[11:44] So what kind of records or property history become most important once a prescriptive easement claim
[11:49] is being disputed? I know. In the episode previously, we talked about, you know, having those older
[11:55] witnesses. Yeah, again, people with personal knowledge, reaching back in time, and keep in mind,
[12:03] we're talking about a five-year look-back period of continuous use. So if you went to court and said
[12:11] between 1975 and 1980, this was used by a prior property owner, my response would be, so what?
[12:21] There's a huge gap in use. It's not continuous. Therefore, you don't have a prescriptive easement.
[12:28] So really, you know, unlike water rights, which we've discussed before, we're not always looking back
[12:35] at historic records here. It's the last five years, or some period of time, perhaps a little longer
[12:42] than that. And, you know, it's not as hard to find witnesses there in that time frame, typically.
[12:49] In the case I brought up before, you know, we knew who the hunting guides were. We knew who the
[12:56] hired hands that drove the cattle were. We could talk to people and find out, how was this used?
[13:01] How often was it used? What are the circumstances? So you're not always desperate for finding,
[13:09] you know, finding somebody way back in history to tell you how it was used, as you often are in water
[13:14] rights. Thank you so much, Peter, for breaking this down for us today about prescriptive easements.
[13:19] I've learned a lot. I enjoy it, as always, Shameika. Thank you very much. Well, that is it for today's
[13:25] episode of Resource Law and Regulation with Peter Scott. If you'd like to learn more about Peter
[13:30] Scott and his work helping clients navigate land use, water rights, and natural resource law
[13:36] in Montana, you can visit scott-law.com. Thank you for listening and be sure to like,
[13:42] subscribe to the show, and share this episode with someone who might need it.
