Prescriptive easements may be obtained either by private individuals or by the general public. The required elements are the same for public and private prescriptive easements. The only difference is that a public prescriptive easement requires qualifying use by the public, while a private prescriptive easement requires qualifying use only by the private party. A prescriptive easement obtained by a private person gives only that person and successors the right to continued use, whereas a prescriptive easement obtained by the general public gives the right of use to the public at large.
Plaintiff trails coalition filed suit igainst defendants property owners claiming a public prescriptive easement over the owners' property for recreational use. The superior court dismissed the action. The coalition appealed. The trial court dismissed the suit because the coalition had not been in existence for 10 years, and therefore, it could not meet the requirements of a prescriptive easement. The coalition argued that the trial court erred by dismissing the suit because the coalition did not need to establish the prescriptive easement by proof of its own continuous use. The supreme court agreed and reversed judgment.
May an organization not in existence for the prescriptive period assert a prescriptive easement on behalf of the public?
The coalition contended that the public had used a pathway that ran through the property since the 1950s to gain access to the trail, and that the use established a prescriptive easement in the 1960s that continued today. To establish a public prescriptive easement, the coalition was required to prove continuous use by the public in general, not use by the organization itself or by any individual member. The coalition was not precluded from relying on and asserting the prescriptive right of the general public. Therefore, it was error to dismiss the complaint on the ground that the coalition had not been in existence for ten or more years.