Restating Implied, Prescriptive, and Statutory Easements

Real Property, Probate and Trust Journal, Vol. 40, p. 75, 2005

42 Pages Posted: 4 Mar 2012 Last revised: 4 Feb 2015

Date Written: 2005


This article argues that the law governing implied, prescriptive and statutory easements requires significant, fundamental reform. Rights of use should only be implied when the law is within the proper scope of the state’s police and eminent domain power and when either the intent of the parties clearly establishes the claimed right or the requirements of estoppel are met. With the possible exception of easements implied by prior use, none of the easements analyzed in this article properly satisfy these basic principles. Rather, the law often unjustifiably imposes utilitarian public policy mandates notwithstanding the contrary intent of the parties. This is problematic because virtually all easement disputes solely implicate private interests. In such cases, the law should seek to do justice between the parties, which is best achieved by giving effect to the intent embodied in their agreement, rather than impose policy standards that serve little or no public interest.

This article accordingly advocates the following reforms: (1) allowing easements implied by necessity only when the parties intended to create an easement but mistakenly neglected to do so and also landlocked the subject tract at severance; (2) abolishing easements implied by necessity based solely on public policy grounds despite the parties’ contrary intent; (3) basing easements implied by prior use explicitly on the parties’ intent to create an easement and not on the mere openness and convenience of the preexisting use; (4) imposing an irrevocable license only when the licensor misled the licensee into believing he would not revoke the license, and the licensee reasonably and detrimentally relied on that misleading conduct, and requiring compensation for the licensor; (5) abolishing prescriptive easements, with meritorious claims currently covered by prescription being addressed through the application of estoppel principles or intent-based reform or supplementation of deeds; and (6) abolishing private statutory easements and only allowing for the exercise of eminent domain to create easements that are open to the public. In the absence of these fundamental reforms, lesser reforms should be adopted, including providing compensation to the landowner who will be burdened by the implied easement.

Keywords: Implied Easement, Prescriptive Easement, Irrevocable License, Statutory Easement

JEL Classification: K11

Suggested Citation

Hernandez, Michael V., Restating Implied, Prescriptive, and Statutory Easements (2005). Real Property, Probate and Trust Journal, Vol. 40, p. 75, 2005, Available at SSRN:

Michael V. Hernandez (Contact Author)

Regent University - School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States


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