In general an easement is a property interest that grants the right to use the land of another. In other words, it’s the right to use the property for a certain purpose, but it is not ownership of the property. Additionally, it should be noted that an easement involves two “estates” or pieces of property – the dominant estate and the servient estate. The Dominant Estate is the parcel of real property that has an easement over another piece of real property, which is the Servient Estate.
The most common easement is a utility easement. A utility company needs to run its pipes, lines, etc. under or on other people’s property in order to serve its customers. As opposed to buying all the land necessary, utility companies negotiate easement agreements with landowners. This allows them to run their pipes, lines, etc. without needing to own massive amounts of property. These utility easements usually last for a very long time, if not for perpetuity, due to the costly nature of installing and providing utilities.
An easement can be as simple as an agreement to allow another person to drive across your property to access theirs. This type of easement is for a very limited purpose and does not require the alteration of the property involved. It also might only last for a limited period of time.
Most recently, we’ve seen an increase in easements by Oil and Gas companies. They need easements so that they can run pipelines across property so that they can more efficiently drill for oil, gas, and other mineral rights. As stated above, most parties requiring an easement negotiate with the landowners to obtain one. However, under certain circumstances you can obtain an easement by prescription.
A prescriptive easement is similar to the property law concept known as “adverse possession,” by which you can come to own someone else’s property if they abandon it and you use it for a long enough period of time (along with other requirements). However, as opposed to actual ownership, a prescriptive easement simply allows you to have an easement over the other person’s property – i.e. cross over it for some specific purpose – if you have been using it for long enough. Under Ohio law, the party seeking a prescriptive easement has the “burden of proof” and must establish in Court that they have been using a neighbor’s property in a manner that is (1) open; (2) notorious; (3) adverse to the neighbor's property rights; (4) continuous; and (5) at least 21 years in duration. J.F. Gioia, Inc. v. Cardinal Am. Corp., 23 Ohio App.3d 33, 37, 491 N.E.2d 325 (8th Dist.1985). These five “elements” must be proven by “clear and convincing evidence,” which is a higher burden of proof than the “preponderance of the evidence” standard that applies to most civil claims.
If you have questions about Easements feel free to give us a call at 740.346.2899.
