Surveying land and closely examining deeds prior to purchase avoids most issues regarding property lines. Yet various legal doctrines can stand in the way of even the most careful purchase, leaving the buyer with less than what they bargained for. Prescriptive easements, adverse possession, and easements implied by preexisting use can all establish property rights, even though no written agreement exists. As with most property disputes, these can be difficult to resolve. The following is a brief discussion of each of the three areas.
In Rogers v. Moore, 603 N.W.2d 650 (Minn. 1999), the Rogers owned a piece of property directly south of an adjoining property to the north, with a gravel driveway as the Rogers’ northern border. They held this property for close to 30 years. Near the end of this period, the Moores purchased the piece of property to the north. They had the land surveyed prior to making the purchase, and discovered that the Rogers’ driveway actually encroached upon their land by about three feet. The Moores weren’t concerned by this, however, because there was no written easement on the deed. The Moores treated the land as their own, building a fence on their portion of the driveway, and eventually installed a pole to block the driveway from being used. This resulted in the legal dispute over the use of the land.
The court held that the Rogers were allowed to continue their use of the full driveway because they had created a prescriptive easement. Creating a prescriptive easement “requires a showing that the property has been used in an actual, open, continuous, exclusive, and hostile manner for 15 years.” The elements must be shown by clear and convincing evidence, a standard falling between a preponderance of the evidence (a fact is more likely to be true than false) and beyond reasonable doubt (as used in criminal cases). The Rogers’ use of the driveway over the years was enough to meet this burden, so they were allowed to continue their use.
Adverse possession is very similar to prescriptive easements, with the largest difference being the ownership interest created. With prescriptive easements, a right to use the land is created but the other party still owns the land. With adverse possession, however, the user gains actual ownership over the land they have possessed. In Rogers v. Moore, the driveway would have been owned by the Rogers, rather than just used by them.
“Proving adverse possession requires the same elements as creating a prescriptive easement: use in an actual, open, continuous, exclusive, and hostile manner for 15 years. Some elements—such as continuity of use—are viewed more strictly in the adverse possession setting than for prescriptive easements. The elements again must be shown by clear and convincing evidence.”
Easements Implied by Preexisting Use
In Romanchuk v. Plotkin, 9 N.W.2d 421 (Minn. 1943), plaintiffs were suing to establish an easement for the use of a sewer pipe running through their neighbors’ land. The two pieces of land had once been a single parcel with two houses, each equipped with plumbing serviced by a common sewer drain, connected to the public sewer in the bordering road. Since the other adjacent street was not available for public sewage, this was the only realistic sewage option for plaintiff. Eventually defendants threatened to sever the connection of the drain, leading plaintiffs to bring this action.
The Supreme Court considered the issue under the doctrine of implied grant of easement, and held that an easement had been established. Easements implied by existing use require three elements: the properties were once part of the same tract, there was an apparent existing use at the time of tract division, and the easement must be reasonably necessary for enjoyment of the other property. Here, the tracts were once one, and the use of the sewer pipe existed when the properties were split. While the pipe may not have been visible, it was still apparent—one could, after a reasonable inspection of the premises, discover the existence of the use. Lastly, the use of the sewer pipe was reasonably necessary, since the other road did not have an accessible sewer line and there wasn’t a realistic way to circumvent defendant’s land.
There are a few things to take away from these cases. First, it’s again important to note that none of these property rights were reflected in any written instrument. This does not mean that they will not be enforced. Second, property disputes get personal, and resolving them is often not an easy task. For example, in Rogers v. Moore, the Moores were approached with an offer to purchase an easement which would have allowed the full use of the driveway. The Moores not only rejected this offer, but also installed a metal pole on their side of the driveway to keep the Rogers from driving on it. In a dispute that rose all the way to the Minnesota Supreme Court, one can imagine the legal fees that each side incurred.
Surveying the land and examining the deed reveal much information about a property, and are necessary steps prior to purchase. Such an investigation, however, might fail to uncover certain non-written restrictions on the property. Prescriptive easements, adverse possession, and easements implied by preexisting use each give property rights to outside parties, despite the lack of an express agreement.