We will suppose that Anthracite, on her way to the coal-fired generating plant, walks across my field every day for, say, 20 years. This, if I understand correctly, generates a prescriptive easement. If after it is established, I, in my rage, build a brick wall across her path, she may then sue me and win a judgment requiring me to put a gate in the wall, or take other actions allowing her to use that path.
Do I also understand correctly that:
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[li]This right is peculiar to Anthracite. If billdo decides to stroll down the same path, I am legally entitled to treat him as a trespasser (but what if Anthraciteallows him on the path?)[/li][li]This right is prepetual and assignable. Anthracite may leave in her will or sell it as she chooses, and I have no recourse.[/li][li]This right runs with all subsequent transfers of the property. If I sell that field to Random, he is also bound to let Anthracite walk on that path.[/li][li]I can re-unite the easement with the property by getting Anthracite to write a deed (would a quitclaim deed be appropriate here?) granting the easement to me. The easement is then as if it had never been; if I sell the property in the future, I do not have to specify “…and the prescriptive easement thereon established by Anthracite”.[/li][/list=1]
Based on the facts presented, the right is personal (in gross) to Anthracite. Under most circumstances, though, prescriptive easements are not limited to one person. I’m also assuming here that Anthracite does not own the generating plant, in which case the easement might be in favor of the plant property (an easement appurtenant) and not in favor of our favorite coal power specialist personally.
Hmm. Tough one. Perpetual, yes, although easements can be extinguished through abandonment. Assignable and descendible? Depends on facts, but generally yes. Of course, if it is an easement appurtenant, it would run with the land (the dominant estate).
Yes
Yes. Form isn’t crucial. I see no reason why a quitclaim wouldn’t cover it.
1c)Based on the facts presented, the right is personal (in gross) to Anthracite. Under most circumstances, though, prescriptive easements are not limited to one person. I’m also assuming here that Anthracite does not own the generating plant, in which case the easement might be in favor of the plant property (an easement appurtenant) and not in favor of our favorite coal power specialist personally.
2)Hmm. Tough one. Perpetual, yes, although easements can be extinguished through abandonment. Assignable and descendible? Depends on facts, but generally yes. Of course, if it is an easement appurtenant, it would run with the land (the dominant estate).
3)Yes.
4)Yes. Form isn’t crucial. I see no reason why a quitclaim wouldn’t cover it. As far any deed the you issue, though, assuming the easement is still in existence, you would be wise not to give a warranty deed unless you excepted the easment.
This is fantastic information guys, thank you all! Especially to the lawyers who contributed (and yes, I know it is not “official” or “on the record” information). In addition, the expansions on this topic that Random and Akatsukami have added to this have been very thought-provoking for me.
At ask.com, I input ‘what is adverse possession’ :
THE FIVE BASIC REQUIREMENTS TO CLAIM TITLE TO ANOTHER’S LAND
Possession must be held either under a claim of right or color of title;
Possession must be actual, open, and notorious occupation of the property in such a manner as to constitute
reasonable notice of that occupation to the record owner;
The occupation must be both exclusive and hostile to the title of the true owner;
Possession must be continuous and uninterrupted for at least five years; and
The occupier must pay all taxes assessed against the property during such five-year period.
See California Code of Civil Procedure Sections 318 et seq.
CAVEAT: Please consult an attorney for legal advice. Laws in the United States differ from one jurisdiction to
another. Any law stated herein is for educational purposes only and may not apply to your particular circumstance.