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Real property

prescriptive easement

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 Texas, a prescriptive easement is acquired when an individual uses another's property openly, continuously, and adversely for a period of at least 10 years. This concept is codified in the Texas Civil Practice & Remedies Code, Section 16.026, which outlines the requirements for adverse possession. While adverse possession typically refers to acquiring title to land, the principles for establishing a prescriptive easement are similar. The use must be such that it gives the true owner a reasonable opportunity to notice and challenge it. The user must not have the owner's permission for the use, and it must be without interruption for the statutory period. If these conditions are met, the user may be able to claim a prescriptive easement. It is important to note that the specifics of each situation can be complex, and an attorney can provide guidance on the likelihood of establishing a prescriptive easement in a particular case.

Texas Statutes & Rules

Federal Statutes & Rules

28 U.S.C. § 1332 - Diversity of Citizenship; Amount in Controversy; Costs
While prescriptive easements are typically governed by state law, federal statutes like 28 U.S.C. § 1332 may be relevant if a dispute over a prescriptive easement involves parties from different states and meets certain criteria, allowing the case to be heard in federal court.

This statute grants federal district courts jurisdiction over civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different states. This could apply to cases involving prescriptive easements if the property in question is of significant value and the parties are from different states. The statute ensures that out-of-state parties have access to a neutral forum, potentially preventing state court bias.

28 U.S.C. § 1367 - Supplemental Jurisdiction
In cases where a federal court has original jurisdiction, 28 U.S.C. § 1367 allows the court to hear additional state law claims, such as those involving prescriptive easements, that are part of the same case or controversy.

This statute provides that federal courts may have supplemental jurisdiction over state law claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy. This means that if a federal court is hearing a case based on diversity jurisdiction or federal question jurisdiction, it can also decide on related state law issues, such as the establishment of a prescriptive easement, as long as they stem from the same set of facts.

28 U.S.C. § 2409a - Real Property Claims
If the prescriptive easement claim involves federal land, 28 U.S.C. § 2409a may be relevant as it allows individuals to challenge the United States' title to real property.

This statute allows individuals to sue the United States in federal district court over disputes concerning title to real property in which the United States claims an interest. While prescriptive easements typically involve private parties, if the easement is claimed over federal land, this statute would govern the process by which the claimant could challenge federal ownership and potentially establish a prescriptive easement.

43 U.S.C. § 932 - Repeal of Preemption Laws
This statute, also known as the 'Repeal Act,' repealed certain federal preemption laws related to property claims, which could affect prescriptive easement claims involving federal lands.

Enacted in 1976, this statute repealed a series of federal laws that had given individuals the right to claim prescriptive easements over federal lands under certain conditions. The Repeal Act ended these preemption claims, meaning that individuals can no longer acquire prescriptive easements over federal lands as they might over private lands under state law. However, existing rights that were established before the repeal are not affected.