PRESCRIPTIVE EASEMENTS:

                                                   When Do They Arise?

                                                                                 by

                                                                   Attorney Steve Olson

                      For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP

Hypothetical: You own 20 acres of woodland which you use for hunting and making firewood.  There are no easements recorded against your property.  However, when you bought the property, you observed a two-wheel track leading across your woodland to the property behind you.  A dispute ultimately arises between you and the neighboring woodland owner behind you.  Question: Have you lost ownership to your woodland where the 2-land track runs? Can you fence off the 2-lane track, keeping the woodland owner behind you from crossing your land?  Answer: It depends.

Prescriptive easements can arise on another's property where someone has openly and obviously crossed the property for at least 20 years without permission of the rightful owner.  The period can be as short as 10 years if the 'trespasser' is a utility company.

Wisconsin law recognizes that, particularly in rural areas, occasional trespassing will likely occur without the owner's knowledge.  Therefore, a Wisconsin statute dictates that the "mere use of a way over unenclosed land is presumed to be permissive and not adverse."  Accordingly, if an occasional grouse or deer hunter wanders through your property, even if they would do so for 20 years and develop a noticeable footpath, a prescriptive easement will not arise. However, if the trespassing occurs often and the trespasser makes improvements to the land to support the trail, then a prescriptive easement may become enforceable.  Improvements may be things such as filling in low spots, spreading gravel, etc.

If a court should determine that a prescriptive easement has been created by 20 years of open and obvious use of your property, this does not mean that ownership of the property actually transfers, which would be the case in adverse possession.  With a prescriptive easement, the true owner remains the owner of the property and is liable for payment of property taxes, etc.  The true owner may use the part of his property subject to the prescriptive easement in whatever manner he or she desires, however, whatever the true owner does must not interfere with the prescriptive easement holder's right to use the easement.  Basically, once a prescriptive easement arises, it is similar to the more common deeded easement.

The best way to protect yourself against someone establishing a prescriptive easement is vigilantly watching your property.  Keeping in mind that a prescriptive easement only arises if someone uses your property without permission, you may permit others to use your property in whatever manner you desire, provided you have a short written agreement specifying the uses with your permission.

                  For additional information: link to Radosevich, Mozinski, Cashman & Olson LLP