Prescription Easements

An "easement" is a right of use over property of another. A characteristic of an easement is that there exists a burdened property and a benefited property. An easement is distinguishable from a "license" which merely confirms a personal privilege for a party to do some act upon ones land. The right of private way over another's land may arise from:

  1. an express grant,
  2. from prescription by seven years uninterrupted use through improved lands by twenty years of use through wild lands, or
  3. by implication of law when the right is necessary to the enjoyment of lands granted by the same owner or by a compulsory purchase and sale through the Superior Court in the manner prescribed by law.

This article will hereinafter address how a right of private way over the land of another may be acquired by prescription.

Common Access to Property

It is common for convenience stores and commercial properties to share common driveways, access points and rights of ingress and egress. It is typical for such common driveways, access and ingress to be pursuant to a "hand shake" understanding. A review of title records and grant deeds discloses no formal express grant of an easement of ingress and egress to either party. In such cases, issues, problems and /or litigation usually arises when one party desires to alter the property lay out, develop or expand upon the property, attempt to relocate ingress or egress points or cut off the rights of the adjoining property owner to access across the property.

Prescriptive Easements

In the Georgia Supreme Court case of Keng v. Franklin, 480 S.E.2d 25 (1997) the court confirmed and reiterated how a prescriptive easement may be established. In particular, the Georgia Supreme Court stated that prescriptive rights are to be strictly construed. It further held that, in order for prescription to occur, the prescriber must give some notice to the land owner, whether actual or constructive, that he or she intends to prescribe against the owner. That court further held that whenever a private way has been in constant and uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way.

In addition, a successful prescribe must show that the private way did not exceed twenty (20) feet in width, that the use continued along the same route without shifting from one path to another, and that the prescriber kept the way open and in repair during the period of prescription. When the use of a private way originates by permission of the owner, prescription does not begin to run until the user notifies the owner, by repairs or otherwise, that he has changed his position from that of a mere licensee to that of a prescriber.

Pursuant to O.C.G.A. § 44-9-54, "whenever a private way has been in constant uninterrupted use for seven or more years and no legal steps have been taken to abolish it, it shall not be lawful for anyone to interfere with that private way." In the Keng case, the dispositive issue was whether the actions of the prescriber and their predecessor in title provided notice to the burdened landowner of their intent to possess the driveway. In the Keng case, it was found that an easement by prescription had arisen because there existed evidence of:

  1. use of the driveway continuously for more than seven years, and
  2. refusal to allow its removal and repairs.

Analyzing Rights of Ingress and Egress

When analyzing the rights and obligations of parties in ingress/egress situations, it is important to distinguish prescriptive easements from what many recognize as adverse possession. In the case of private ways, the use may originate in permission, and may ripen by prescription. Adverse possession cannot arise out of permissive use. For adverse possession to occur there must be proof of non-permissive use which is actual, open, notorious, exclusive and adverse for the required statutory period, depending on the nature of the rights to be acquired by adverse possession and whether such adverse possession is under "color of title". (See Ponder v. Ponder (2002).

The prescription or adverse possession will not run against a state or its political subdivisions. (See Land USA v. Georgia Power Co. (2015)). As discussed in the Keng case, in the prescription easement case, it is required that the use be continued along the same route without shifting from one path to another, and that the use may originate by permission but the seven year period does not begin to run until actual or constructive notice is provided to the owner by repairs or otherwise, that the use is claimed adversely against the owner.

In order to prevent issues, devaluation of property, problems or possible litigation, it is necessary property owners and possessors carefully consider what is presently occurring at each of your locations. Depending upon the interest to be protected, it is important that the appropriate action be taken immediately to prevent any losses of easements or property rights through inaction.