Legal Insight. Business Instinct.


Many Idaho farms and ranches are surrouded by public lands, or by private land. Many times the only way to access a farm or ranch is by crossing public land, or your neighbor’s land. What happens when your neighbors put up no trespassing signs or block access across their land? What are your options? Easements are usually the answer.

Disputes between landowners often involve easements, which are a “right of way.” An easement is a limited interest in land that allows one to use another’s property in a particular manner. For example, a farmer might have an easement that allows him to cross his neighbor’s field to get to his property. Because access is often a cause of dispute between landowners, it is important to note the different ways that they can be formed.

Express Easement: Most easements are express easements which are created by written documents. However, even though the easement may be written, disputes may arise as circumstances change that the drafters of the easement did not anticipate. Having an attorney review or draft an express easement to include all of the current and possible future uses of an easment before purchasing or selling a property can help to alleviate future problems.

Prescriptive Easement: Prescriptive easements are granted when one uses another’s property for a particular purpose for an extended period of time without the owner’s permission. The requirements to obtain a prescriptive easement are as follows: one must be use the land without the owner’s permission; one must use the land often enough that the owner would know of the use; the actions must be open, notorious and continuous under a claim of right, and; for a period twenty years. Prescriptive easements are often used to claim road rights of way.

Easement by Necessity: The common scenario in which an easement by necessity is granted is when a property is landlocked from public roads, and an easement is necessary so that the landowner can get access to his or her property. While the possible scenarios are endless, the main requirement is that an easment must be necessary. Inconvenience is not enough. Having to drive another 20 minutes to access your property through public roads is not a necessity. However, if the only way to get to your property is by catapulting yourself over your neighbor’s land, you may have a good case for an easement by necessity.

Easement by Implication: An easement by implication requires a showing that the property needing an easement and the property over which an easment is claimed were both owned by the same person. In addition, there must be a continuous use of an access over the neigbhoring property and reasonable necessity of an easement.

The law recognizes a number of different easements and different methods for creating an easement. If you are having issues in accessing your property consult with your lawyer regarding an easement.

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