Prescriptive easements have the same requirements as for adverse possession, although the
scope of a right acquired is different.
Adverse Possession: 1. actual; 2. continuous for the statutory period; 3. exclusive; 4.
hostile; 5. open and notorious
Possession must be adverse, not done with permission by the servient tenement.
1, 2. The use must be continuous and uninterrupted throughout the statutory period.
Whereas in adverse possession, the adverse possessor must be in actual possession of the
land in question, with easements, it involves only use therefore, all that is required is that
the attitude of non-subordination on the part of the user must be continuous, and the use
itself must be at least reasonably continuous measured by the needs of the user. Thus in
the case of a right of way over a driveway, the continuity requirement would not be
violated if the user was out of town for a month, so long as he made reasonably frequent
use when he was present
– Occasional use not sufficient. If the use is so infrequent that a reasonable
landowner would not be likely to protest, and would view the matter as an
occasional minor trespass, the continuity requirement is not satisfied
3. Use does not need to be exclusive, because the issue is use, not possession. This stems
from the idea that only the attitude of non-subordination, not just physical use, must be
continuous. However, the land may not be used by the public at large
4. Hostility is not necessary. If the parties make an arrangement which the dominant
owner is justified in regarding as permanent, this may be enough to make his use adverse
even though there are no ill feelings between the two owners.
Possession may originally be permissive (a license) and then become adverse if the
licensee openly renounces the license and bring home to the licensor that the former’s use
henceforth is not subordinate.
5. The use must be “open and notorious” throughout the statutory period. That is, the use
must be such that the owner of the servient tenement is put on notice that the use is
occurring.