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Beebe v. DeMarco

Citation. 22 Ill.157 Or. App. 176, 968 P.2d 396 (Ct. App. 1999)
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Brief Fact Summary.

Plaintiff claims a prescriptive easement across Defendants’ property due to the open and notorious use of Defendants’ property as a roadway for more than ten years.

Synopsis of Rule of Law.

In order to establish a prescriptive easement a claimant must show, by clear and convincing evidence, an open and notorious use of Defendants’ land adverse to the rights of Defendants for a continuous and uninterrupted period of ten years.


In 1957, Plaintiff and her deceased husband purchased lot 11 in the River Crest Acres Subdivision. Defendants’ parents owned lot 14 in the subdivision, which was three lots west of Plaintiff’s and bordered Fifth Avenue. Both lots face Sunset Avenue. In 1958, the owners of the subdivision built a new subdivision called Hidden Acres. That development created a six-foot wide alley running to Fifth Avenue along the rear of lots on Plaintiff and Defendants’ block. As a result of the alley, Plaintiff and her husband gained access to Fifth Avenue from the rear of their property. The alley was not wide enough to accommodate the Plaintiff’s boat so they traveled over a portion of lots 12, 13 and 14 (Defendants’ lot) to get from their house to Fifth Avenue. The Plaintiff testified that she and her husband used the path every weekend from 1959 to 1969 and that from 1970 until 1993, when her husband died, he took the boat out using the alley. In 1979, Plaintiff’s husband built a large sho
p to the rear of the house and that her husband would drive from 5th Avenue along the alley to the rear of their house approximately five days per week. The path was shown to have tire ruts from usage. Also, contractors and guests of Plaintiff also used the alley. No one ever gave Plaintiff or her deceased husband permission to use the alley as it passed through lot 14. In 1994, Defendants inherited lot 14 and divided the lot into three parcels. During the construction of a house on a portion of lot 14, a fence was erected which blocked the Plaintiff’s path across the rear of lot 14. Plaintiff instituted this suit claiming an easement by prescription. The trial court held that Plaintiff had established an easement twelve feet across the southern portion of lot 14, and directed the Defendants to tear down the fence and that Plaintiff and her successors had the right to enter onto the land and grade, level, drain, build and maintain the roadway. The Defendants appealed.


Did the Plaintiff establish a prescriptive easement?


Yes. Judgment affirmed.
To establish a prescriptive easement a claimant must show by clear and convincing evidence an open and notorious use of defendant’s land adverse to the rights of defendants for a continuous and uninterrupted period of ten years.
The Defendants argued that the Plaintiff’s use of the path was not sufficiently continuous to establish a prescriptive easement. The court held that continuous does not mean constant; it refers only to the character of the user’s state of mind and requires only that the alleged easement be used in a manner consistent with the needs of the user. The evidence showed that the Plaintiff and her deceased husband used the path in a continuous manner for ten years and more.
The court held that a use, which is shown to be open and continuous for ten years, is presumed to be adverse. Showing that the Plaintiffs merely used an existing road in a way that did not interfere with Defendants’ use may rebut the presumption. In this case the court found no evidence of an existing road, no evidence of the Defendants’ use of the land in question, and that the Defendants had failed to rebut the presumption of adverse use.
The Defendants also argued that the judgment of the trial court was worded so broadly that the Plaintiff could pave the roadway, which would interfere with Defendants’ property rights. The court held that an easement owner is limited to those uses of the easement that are reasonably necessary for the easement’s purpose. Thus, the fact that there was no indication of the Plaintiff’s desire to pave the path meant that the question was of no importance.


The doctrine of prescriptive easement is similar in character to that of adverse possession, which will be covered in another section of the text. The chief difference is that a prescriptive easement is adverse use by one of the lands of another, which does not result in a change in ownership of the land itself, whereas adverse possession does cause such a shift in ownership.

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