Thank You For Submiting Feedback!
To establish a prescriptive right in a roadway it is essential that the use of the way must constitute some actual invasion or infringement of the right of the owner. If the use is with permission of the owner of the property, no invasion or infringement of the owner's rights occurs. Adverse use is some actual invasion or infringement that is made without permission of the owner. Mere proof that the owner "acquiesced" in the use is not proof that the use was with the owner's consent or permission.
Michael and Kathryn Melendez brought this action against their neighbor James Hintz after Hintz blocked a driveway on his property which the Melendezes and their predecessors had used for twenty years. The Melendezes claimed they had acquired a prescriptive easement by adverse use of the driveway. The district court agreed. Hintz has appealed.
Was the Melendezes' use of the driveway adverse to Hintz?
The court held that the evidence showed that the Melendezes' use of the driveway was adverse to Hintz. Because the Melendezes had used the driveway for more than five years, they acquired a prescriptive easement, pursuant to Idaho Code § 5-203. Because the use constituted some infringement or invasion of Hintz’ rights, it was presumed to be adverse and without permission of the owner. The trial court correctly applied the general rule presuming that when the use originated, it was adverse to Hintz. The Melendezes' use was open, notorious, continuous, and uninterrupted for more than the prescriptive period. Therefore, the Melendezes were entitled to the presumption that such use was adverse.