When "Comprehensive" Prescriptive Easements Overlap Adverse Possession: Shifting Theories of "Use" and "Possession"

Abstract

Human nature dictates that private ownership of land creates conflict among neighbors. In the realm of adverse possession and prescriptive easements, the law intervenes to settle these disputes. Adverse possession quiets conflict by providing the ripened possessor with title in fee simple absolute. In contrast, a prescriptive easement provides the holder with only a right of use. However, there are occasions when a prescriptive easement establishes a right of use so broad and encompassing that it amounts to a grant of de facto possession. Thus, such a “comprehensive prescriptive easement” enables the court to award the equivalent of possession while only requiring proof of mere prescriptive use. This Note examines the problems of comprehensive prescriptive easements, and explores possible solutions where rights of use are the equivalent of possession.