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A right of way may be acquired by prescription through 20 years of uninterrupted, open, notorious, and adverse use. The extent of the easement so obtained is fixed by the use through which it was created. Yet, the use made during the prescriptive period does not fix the scope of the easement eternally. It may change over time and uses satisfying the new needs are permissible, but the variations in use cannot be substantial; they must be consistent with the general pattern formed by the adverse use. Once an easement is created, every right necessary for its enjoyment is included by implication.
The landowner sought to eliminate entirely roads shown on the plan filed with the registration petition and, in the alternative, to establish that the use being made by the easement owners of the road called the "Gravel Road" constituted an overload of that easement. The easement owners had been running heavy motorized over the Gravel Road for sufficient years before the landowner began to assemble his property so as to have attained that right by prescription.
Did the lower court err in preserving a right of way over the "Gravel Road" in favor of easement owners?
The court found that the improvements to the Gravel Road did not in and of themselves constitute an overburdening of the easement. Some of the improvements, for example the clearing of brush and laying down gravel and clinkers, had occurred during the prescriptive period. The lower court had concluded that the variation in use was moderate and was consistent with the general pattern formed by the adverse use. While the easement owners' recent use doubtless caused the landowner some annoyance, it did not appear to be so substantial as to be unreasonable. Upon a review of the record, the court was unable to say the lower court's findings were insupportable.