Easement destruction/ relocation

Lehmann · Post by **Lehmann** » Thu Feb 24, 2011 9:09 am

Situation: Prescriptive easement serves Dom parcel over Ser Parcel. Act of nature destroys portion of Ser Parcel over which Prescriptive easement existed. Neccesity for replacement did and continues to exist. Are there any specific court cases that you can recall and cite that state the prescriptive easement can/could be relocated on the lands of the remaining Ser Parcel in a location different from where it had been located.

If you are aware of any, please cite. So far, coming up with nada.

Thanks

Jim Frame · Post by **Jim Frame** » Thu Feb 24, 2011 9:53 am

What you're looking for is a court case supporting a guy who says, "I gained rights over a specific piece of your property by hostile action, nature removed the specific piece of property, now I want you to give me equivalent rights over another piece of your property without having to fight for it."

Good luck with that one.

.

E_Page · Post by **E_Page** » Thu Feb 24, 2011 1:20 pm

I was thinking essentially what Steve wrote. A prescriptive easement is for a specific reason over a very limited portion of property actually being used for the prescribed purpose. Once that use is removed, the prescription ceases. I would think it the same once the property at that parrticular limited location ceases to exist.

The use in a new location cannot be prescriptive because it has not existed in that location unabated for 5+ years. If the necessity is there, with no other reasonable options, then you are into a situation to press for an easement by necessity.

Ian Wilson · Post by **Ian Wilson** » Fri Feb 25, 2011 7:34 am

I dealt with exactly this situation a few years ago. The case never went to court. My client, the Dom, and the Serv managed to settle.

I'll see if I can find anything in the file for that one.

Something is sticking out in my mind, but I don't remember the details.

Cheers, Frank!

Lehmann · Post by **Lehmann** » Fri Feb 25, 2011 12:32 pm

Danner,
Thanks for the specific info. Equity was the approach we were taking. Ian, it would benefit myself and others if you find anything. BTW, just found out that the judge ruled in our favor. Won't be commenting any further until the appeal period runs out.
Thanks