Proving a Prescriptive Easement

Does an easement exist?   A recent case discusses. An upland property owner claimed it had a prescriptive easement over downstream property owner to use a drainage pipe to drain surface water.

“[A]n easement is a right to use another’s land ‘for some particular purpose or purposes.’ ”  The following elements must be proven to establish the existence of a prescriptive easement:

(1) actual, continuous, and uninterrupted use by the claimant or any predecessor in title for the prescribed period of twenty years; (2) that during the whole prescribed period the use has been either with the actual knowledge of the owner or so open, notorious and visible that knowledge of the use is imputed to the owner; (3) that the use related to a certain limited and defined area of land or, if for a right-of-way, the use was of a definite route with a reasonably certain line, width, and termini; and (4) that during the whole prescribed period the use has been adverse to the lawful owner; that is, (a) the use has been made without the permission of the owner and under some claim of right other than permission from the owner, (b) the use has been either exclusive of the owner or inconsistent with the rights of the owner of the land to its use and enjoyment, and (c) the use has been such that, during the whole prescribed period, the owner had a cause of action against the user for the use being made.

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It is well established that the use of the property of another is presumed to be with the owner’s permission.  And as such the “burden is on the claimant to prove that the use or possession is adverse” by “clear and positive proof.”  Clear and positive proof “is consistent with the jurisprudential definition of clear and convincing evidence.”  “[L]oose, uncertain testimony which necessitates resort to mere conjecture” is insufficient.  “[A]ll doubts as to the adverse character of a claimant’s pattern of use must be resolved in favor of the lawful owner of the property.” 

Lincolnshire Maximo, LLC Marina Walk, LLC, 51 Fla.L.Weekly D579a (Fla. 2d DCA 2006) (internal citations omitted).

In this case, the trial found the prescriptive easement existed. But in doing so, the trial court placed the burden on the downstream owner to prove that the use of the drainage pipe had been with permission. But this was the wrong burden. The burden should have been on the upstream property owner—the owner claiming the prescriptive easement—to prove that its use of the drainage pipe had been WITHOUT permission.  See Lincolnshire Maximo supra (“Contrary to the court’s finding, the evidence presented at trial did establish that permission or consent to use the pipe on [the downstream] property had been given — at least implicitly — until that permission was withdrawn in 2018.”).