A prescriptive easement—also known as an easement by prescription or an adverse easement—is an easement (right to use property) created by a use of property (the servient estate) that is open, continuous, and adverse to the owner of the property (the servient estate).
To satisfy the requirement that the use be continuous, the use must take place over a required period of time—which may be specified in a state’s court opinions (common law or case law) or in its statutes if the state legislature has written the law regarding easements into statutes or code. If the state legislature has written a law in statutes or codes the law is said to be codified.
In Montana, a prescriptive easement is established when an individual uses another's property in a manner that is open, notorious, continuous, exclusive, and adverse for a statutory period of 5 years, as outlined in Montana Code Annotated § 70-19-404. This means the individual must use the property as if they were the owner, without permission from the actual owner, and this use must be apparent and not hidden. The use must be uninterrupted for the entire 5-year period, and it must be without the consent of the property owner. If these conditions are met, the user may be able to claim a prescriptive easement, giving them the right to continue using the property in the established manner. It is important to note that the establishment of a prescriptive easement does not transfer ownership of the property, but rather grants a right to use a portion of the property. Individuals seeking to establish or contest a prescriptive easement may benefit from consulting with an attorney to navigate the complexities of real property law.