Mere non-use of an easement created by deed, for a period however long, will not amount to abandonment. In addition to the non-use there must be acts or circumstances clearly manifesting an intention to abandon; or an adverse use by the owner of the servient estate, acquiesced in by the owner of the dominant estate, for a period sufficient to create a prescriptive right. Nor is a right of way extinguished by the habitual use by its owner of another equally convenient way unless there is an intentional abandonment of the former way.
The Lindseys filed suit to enjoin the Clarks from using a driveway along the north side of the Lindsey lots and to have themselves adjudged the fee simple owners of the two lots claimed by them. It was alleged that the Clark's did not use the north side driveway. The trial court held that the Clarks owned a right of way on the south side of the Lindsey lots and, in effect, put the Lindseys on terms to make it available to them or else allow the Clarks to continue using the one on the north side.
Is it considered abandonment when there is no use of the easement even without evidence?
It is not an abandonment when an easement is not used unless there is intent to abandon it. In reaching its decision, the court found that appellees had specifically reserved a right of way over the lots and that there was no intention of abandoning that right of way.