In order to obtain a prescriptive easement, a person must continuously, openly, and visibly use the land for a period of ten years, under a claim of right. Spaulding v. Pouliot, 181 P.3d 243, 218 Ariz. 196, 2008 Ariz. App. LEXIS 61 (Ariz. Ct. App. 2008). The mere use of the land in question for ten years is not sufficient, however, to support the granting of an easement. The use must be hostile to the property owner, or done without the owner’s permission.
In Spaulding, Pouliot and his predecessor had used and graded an unpaved road to get access to the carport on their land for 30 years. The unpaved road was actually on the neighboring property, which was owned by a Trust. The Trust asked Pouliot to discontinue using the property, but he refused, claiming that he had a prescriptive easement over the land.
The trial court had difficulty analyzing which party had the burden of proving that the use of the land was hostile due to apparent conflicts in Arizona caselaw. On appeal, the Arizona Court of Appeals determined that the burden of proving that the use was permissive would be placed on the land owner, but only after the party claiming a prescriptive easement had established that the other elements had been satisfied—that the land had been used openly, visibly, and continuously for a period of ten years.
The burden then shifts to the land owner to show that the use was permissive, by showing that either express or implied permission was given to use the land. If the use began as permissive, it will be presumed to have remained permissive. However, the party claiming the easement can also overcome this presumption by showing that despite the fact that permission was initially given to use the land, later actions indicated to the land owner that the use had become hostile.
The purpose of the hostile use requirement is to put to the public, particularly the land owner, on notice that the disputed land is being used under a claim of right. The shifting of the burden of proof in cases where all the other elements of a prescriptive easement are met helps the person claiming a prescriptive easement overcome the difficulty of proving that permission did not exist, by requiring a showing of affirmative evidence of proof of permission by the land owner.
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