Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“Does our neighbor have a prescriptive easement? We live in Kentucky. We own two properties one in front of the other. Two neighbors have a easement across both our properties. The easement is suppose to be 30 feet from the property line. This easement was created before we purchased either property. We purchased the first property a little over 4 years ago and the second property will be 3 years coming this March (2007). However, we just recently learned that the gravel road the two neighbors have been using to cross our properties is as much as 5 feet outside the easement in areas. We found this out when one of the neighbors wanted to pave the road and we measured. The neighbor that wants to pave has lived there just a bit over 4 years himself as he moved in a few weeks before us. The second house was just sold and the person that bought that property had us sign papers giving them easement to cross it but with no stipulation about where the easement was. The closing lawyer insisted because he didn’t see the original agreement when he did a search. I’m not sure why since we easily found it when we looked and even gave the new owner a copy of the easement papers contained in the county property records. We don’t care about the overage on the first property as its only a few feet and wouldn’t make a big difference in our enjoyment of the property. However we do care about the overage on the second property. The reason being is that because of required offsets a paved road could seriously compromise our ability to build another home on that property. (A good deal of the acreage is taken by a large lake). Do we have a right to reinforce the original easement agreement of 30 feet with either of these neighbors or do they now have a prescriptive easement because of prior use? If we do have that right what must we do to enforce it? Do we have the right to stop the neighbor from paving the road outside the original easement agreement? We don’t mind it being paved as long as he stays within the original lines but he’s being a @#$ about the whole deal and has threaten to get his lawyer involved. This is because staying within the easement lines will cost him more money to pave. We can’t afford to help with this expense and we don’t use the road so we wouldn’t benefit from it either. Also, if he does pave, who has to maintain the road?”I can’t specifically say whether your neighbors have a prescriptive easement or not, because it depends on facts that I do not know. However, you are probably in a good position with respect to the paving.
Question: As background, it is possible to obtain a prescriptive right even when there is a granted easement. As in your case, if the user of the easement expands the use beyond the scope of the granted easement, a prescriptive right to the expanded portion may result. Whether or not this is the case depends on the normal factors that govern prescriptive easements in your state: use of the property, under color of right, without permission, for the requisite period of time.I don’t know what the required time period is in Kentucky, but as far as I know the time period is measured by total use, not by a particular owner. In other words, if the time period is 5 years, and owner A uses your property for 3 years, then sells to owner B who uses it in the same way for 2 more years, the two time periods are put together to form the required amount of time.
So it is possible that your neighbors have a prescriptive easement; I don’t know. But even if they do, they have the right to use your property in the way they have been doing in the past. Using your property as a gravel road does not give them the right to use it as a paved road. They may have that right under the granted easement, but that would be limited to the physical area described in the grant.
As always, these answers are based on general principles of law, and I strongly urge you to consult with a local attorney before you take a position with respect to your neighbors.