Wels v. Hippe

To establish a prescriptive easement a party must show adverse use of land, meaning that the use of the property is not subordinate to the owner, is or may be wrongful, and is open and notorious.

Defendants appeal a judgment declaring that plaintiff has a prescriptive easement over a dirt road running through defendant’s property. Plaintiff’s access to their property runs through several parcels of federally owned land, and privately owned parcels, including defendant’s. In 2008 plaintiff’s sought a building permit, which the county would not issue without confirmation that plaintiff had legal access to his property. Plaintiffs were granted easements from several property owners, but sought a prescriptive easement when defendant refused to grant the requested easement. The trial court granted the prescriptive easement, and awarded plaintiff costs. Defendant appealed, and argued that plaintiff failed to prove that use of the road was sufficiently adverse to defendants’ rights to establish an easement, or that plaintiff continuously used the road for at least 10 years. The Court of Appeals held that although plaintiffs attempted to obtain a written easement, that their prior use of the road was not subordinate to defendant and thus their use was sufficiently adverse. Additionally, although plaintiffs requested the written easement before 10 years of use, that plaintiff’s continued adverse use of the road supports the trial court’s finding of 10 years of adverse use by plaintiff. Affirmed.