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20. What should the lawyer tell the man concerning his right to use the rerouted path on the neighbor's land?
The period of time necessary to acquire rights by prescription in the jurisdiction is 10 years. The period of time necessary to acquire title by adverse possession in the jurisdiction is 10 years.
The man's land and the neighbor's land have never been in common ownership.
A month ago, the neighbor discovered that part of the path was on her land. The neighbor told the man that she had not given him permission to cross her land and that she would be closing the rerouted path after 90 days.
Twelve years ago, the neighbor leased her land to some hunters. For the next 12 years, the hunters and the man who had rerouted the path used the path for access to the highway.
Fifteen years ago, after part of a path located on his land and connecting his cabin to the public highway washed out, the man cleared a small part of his neighbor's land and rerouted a section of the path through the neighbor's land.
A man contacted his lawyer regarding his right to use a path that was on his neighbor's vacant land.
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The basic ways of creating an easement are by express grant, implication, and prescription. An easement by express grant is one that is recorded and signed by the grantor and must comply with all the formalities of a deed. An easement by implication is created by operation of law rather than a written instrument. An easement by prescription is similar to adverse possession, where the use must be open and notorious, adverse, and continuous and uninterrupted for the statutory period.
C is correct. The man is claiming a right to use a portion of the neighbor's land, which is an easement. An easement by prescription requires that the use is without the owner's permission for the requisite period of time. The man has used the path for the past 15 years without the neighbor's permission. His use was open and notorious in that the neighbor could have seen him, it was continuous and without interruption by the neighbor, and it was actual. An easement acquired by prescription need not be exclusive. With an easement, the owner may make any use of the easement area that does not interfere with the use made by the easement holder, unless the easement is expressly noted as exclusive.
A is incorrect. The man's use of the path across the neighbor's land for the past 15 years was without the permission of the neighbor. His use was open and notorious in that the neighbor could have seen him, it was continuous and without interruption by the neighbor, and it was actual, all of which are elements needed to acquire a title by adverse possession. However, the man lacks exclusivity because he shared his use with the hunters. The man, however, is not claiming an ownership interest, as would be the case with adverse possession, but rather, a right to use the land, which is an easement. The man has acquired an easement by prescription. With an easement, the owner may make any use of the easement area that does not interfere with the use made by the easement holder, unless the easement is expressly noted as exclusive. Any use by the neighbor's tenants, the hunters, did not interfere with the man's use, nor did his use interfere with theirs.
B is incorrect. An easement by necessity may be implied only if the lands had been in common ownership and the strict necessity for the easement existed at the time of severance. The man's land and the neighbor's land have never been in common ownership. The man has acquired, however, an easement by prescription to use the path.
D is incorrect. The use by the neighbor's tenants, the hunters, did not interfere with the man's use, nor did his use interfere with theirs. The man has acquired an easement by prescription, for the reasons explained above.