A title examiner may rely on a court’s final order establishing a prescriptive easement that one party’s use of the land of another party was open, notorious, continuous, and hostile or under claim of right, for a period of fifteen years.
Comment 1. The elements necessary to establish an easement by prescription are essentially the same as the elements necessary to establish adverse possession except that a party asserting adverse possession must also establish exclusive possession. A party asserting prescription may rely on previous periods of use by other individuals through tacking, but privity is required for tacking of adverse use periods in establishing prescriptive easements. See generally Moyers v. Poon, 167 A.3d 337, (2017) (all citations and references omitted).
Comment 2. In contrast to the owner of an estate which acquired title by adverse possession (who is as free as other owners to change the use of the property), the holder of an easement by prescription is only entitled to make the particular use authorized by the servitude (e.g. for a road, pipeline, general access, or view). The nature and scope of the use of property during the prescriptive time period establishes the general outlines of the easement. The owner of a prescriptive easement cannot materially increase the burden of it upon the servient estate, nor impose a new or additional burden thereon. The extent of the presumed right is determined by the user, upon which is founded the presumed grant; the right granted being only co-extensive with the right enjoyed. Although the current use may vary in some degree from the use that gave rise to the prescriptive easement, no use can be justified under a prescriptive easement unless it can fairly be regarded as within the range of the privileges asserted by the prescriptive user. See generally, Schonbek v. Chase, 189 Vt. 79 (2010) (all citations and references omitted).
For a discussion of easement by estoppel, see generally, Tallarico v. Brett, 137 Vt. 52, 400 A.2d 959, (1979)
September 2020 – Standard Added