How to Distinguish an Implied Easement

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“Have owned the same parcel for approx 20 years. Have access to irrigation water via a pipeline across neighbors property. Helped to pay for pipeline that supplies water to their parcel, and to our pipeline. That parcel sold recently. New owner says since pipeline is not specified or noted in title search, there is no legal basis and his lawyer has notified us that unless we can show legal basis they are going to remove the pipeline. I believe our basis is implied easement. Am I correct, an what is the best way to establish this?

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Thank you.”

The typical “implied easement” situation is very different from what you are describing, above. An implied easement usually results when a person subdivides a property and fails to record a use that had been going on prior to the subdivision (such as a road leading across one property to another).

In this situation, the properties were owned separately at the time the pipeline went in. To be honest, you’re in a difficult position. You do not have an explicit easement, but you may have difficulty demonstrating that you have a prescriptive easement because your previous neighbor was cooperative, and therefore might be found to have given you permission (which negates a prescriptive easement).

You can certianly try to play the prescriptive easement angle, with an eye toward coming to an agreement with the neighbor to create an explicit easement. Don’t be surprised if the neighbor, at a minimum, holds out for a substantial payment in exchange for this.

P.S. Pronouns are your friend.



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Author: House Attorney

A house attorney has answered this question.