The common law doctrine of prescriptive easements does not efficiently balance the public policy rationales that are responsible for the current approach to prescriptive easements and needs to be adjusted to remain a viable doctrine. Prescriptive easement law in the United States was based on English doctrine and has been accepted by American courts since at least the 1800s. In all that time, very few significant changes have been made to the doctrine. The result is that the United States now has a deeply rooted common law doctrine that has not been significantly modified in over one hundred years.
Because prescriptive easement doctrine is a creature of state law, the doctrine’s longevity means that states with prescriptive easement doctrines have had over one hundred years for state courts to obfuscate the doctrine in each state, which has led to a variety of inconsistencies between jurisdictions, both in how the law is articulated and in how it is applied. For prescriptive easements to continue serving a legitimate function, the states should adopt a uniform approach. That approach should modify the prescriptive easement doctrine to better conform with the policy choices embraced by the Restatement (Third) of Property: Servitudes (“Restatement (Third)”) and allow the doctrine to operate more efficiently, without needlessly granting property rights to those who do not pay for them.
Designing a uniform approach that all states will be willing to accept and incorporate into their common law is undoubtedly a daunting task. This is especially true because prescriptive easements are a common law doctrine, which means that, unless state legislatures decide to intervene and tackle the issue, state courts will be the ones to accept or reject a modern approach to prescriptive easements. However, such a daunting task is certainly worth the effort; such an approach will simplify the doctrine’s application and eliminate confusion between jurisdictions.
Conveniently, there is currently a perfect opportunity to articulate a new approach to prescriptive easements. As of this Comment’s writing, the American Law Institute (“ALI”) is currently working to produce the Restatement (Fourth) of Property. The Restatement (Fourth) will be the first comprehensive restatement of property law and “seeks to bring comprehensiveness and coherence to American property law.” Additionally, easements are specifically listed as one of the areas that the new Restatement (Fourth) will address. The new, comprehensive Restatement (Fourth) is an opportunity for the ALI to improve prescriptive easement law in the states by promulgating a uniform approach that incorporates the changes to the doctrine argued for in this Comment.
Prescriptive easements generally arise in two factual contexts. First, and most common, is the situation where a claimant makes use of the easement without the servient owner’s permission and thereby acquires an easement without compensating the servient owner for it. The second context is where the parties agreed to create a servitude, but failed to do so because they either did not put their agreement in writing (thereby failing to comply with the statute of frauds) or because they failed some other formal requirement for creating the easement sought. Because these situations involve different policy considerations, this Comment will focus on the more common situation where the claimant uses the servient owner’s land without permission and acquires an easement without paying for it, and will address the policy considerations underlying prescriptive easements in that context.
