Legal Memorandum: Claim for Prescriptive Easement

Issue: Whether a neighbor can claim a prescriptive easement over a second neighbor’s property if the first neighbor used a driveway with the second neighbor’s permission.

Area of Law: Litigation & Procedure, Real Estate Law
Keywords: Prescriptive easement; Permission; Acquiescence
Jurisdiction: Minnesota
Cited Cases: 181 N.W.2d 466; 287 N.W.2d 923; 577 N.W.2d 521
Cited Statutes: None
Date: 02/01/2012

A claimant establishes a prescriptive easement upon showing open, visible, continuous, and unmolested use of the easement for a period of 15 years.  Block v. Sexton, 577 N.W.2d 521, 524 (Minn. Ct. App. 1998); Ehle v. Prosser, 197 N.W.2d 458, 462 (Minn. 1972); Nordin v. Kuno, 287 N.W.2d 923, 926 (Minn. 1980).  Once the claimant demonstrates these elements, it is presumed that the use is adverse or hostile, and the burden shifts to the landowner to prove that the claimant’s use was permissive.  Block v. Sexton, 577 N.W.2d at 524; Hartman v. Blanding’s Inc., 181 N.W.2d 466, 469 (Minn. 1970); Nordin v. Kuno, 287 N.W.2d at 926. 

Minnesota law, however, draws a clear distinction between permission and acquiescence.  While permission defeats a prescriptive easement, acquiescence does not.

The very foundation of the establishment of a right to an easement by prescription is the acquiescence by the owner of the servient tenement in the acts relied upon to establish such prescriptive right.  It is also the rule that, where the user is permissive on the part of the owner, there can be no prescriptive right, and that, if the user was permissive in its inception, it must become adverse to the knowledge of the owner of the servient estate before any prescriptive rights can arise.  It must be apparent, therefore, that “acquiescence” and “permission” as used in this connection are not synonymous.  “Acquiescence,” regardless of what it might mean […]

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