“Fifty years ago when our house was built, the builders routed our sewer line (downhill, of course) across our neighbor’s property (along the edge of their property line). The routing of our sewer line was not known to either us or our neighbor until earlier this year, when we needed to replace the line because it was draining slowly. We replaced the portion of the sewer line on our property until we got to the back fence and discovered that we had another 150 feet to go (across the neighbor’s property).
The only official documentation we could find was the City Water/Wastewater department map that has the words “private ease.” written on the map and diagrams showing that our sewer line was routed through his yard, 1 foot away from his property line with his neighbor. Our sewer line enters his property in his (and our) backyard and continuing to the street at his front yard. We did not find a legal easement filed anywhere (we checked the county records and also talked with a title company). Our neighbor’s title policy (they bought the house about 5 years ago) does not show any such private easement.
The fact that we have used a portion of his property for the purpose of our sewer line for the last 50 years, without his permission (or knowledge), seems to be a textbook case of a prescriptive easement. Do you agree with that? If our neighbor does not want to grant us access to replace the sewer line, do you think we would have problems if we had to file a lawsuit to get access? (I live in Texas, so ordinary rational laws may not apply.)”
Setting aside any non-rational laws that might apply, in general there are several factors that must apply in order for a prescriptive easement to be created. There must be 1) use of another person’s property, 2) for the requisite period of time, 3) the use must be “open and notorious,” and 4) without permission.
You clearly meet #1, and while the time period varies from state to state I’m sure 50 years qualifies. However, if it came to a lawsuit and your neighbor wanted to fight it, he could make an argument under one of the other two.
Permission is a possibility; although this neighbor may not have given you permission, if a previous owner of his property gave a previous owner of your property permission, that might be enough. The note you found on the map could, arguably, be evidence of that.
A better defense would be the “open and notorious” part. If neither of you knew that the sewer line was there, it’s unlikely that anyone else did, either.
It’s hard to say how this would play out in court, if it came to that. Perhaps more importantly, a lawsuit would take an awful long time that you don’t want to spend without a working sewer line. See what you can work out with your neighbor; even if you have to pay him something to get a formal easement, you might be better off.