Utah Prescriptive Easement

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A party claiming a prescriptive easement must prove that his use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years. See Savage v. Nielsen, 114 Utah 22, 197 P.2d 117, 122 (1948). However, once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse. See Zollinger v. Frank, 110 Utah 514, 175 P.2d 714, 716 (1946). To prevent the prescriptive easement from arising, the owner of the servient estate then has the burden of establishing 312*312 that the use was initially permissive. See id.; Richins v. Struhs, 17 Utah 2d 356, 412 P.2d 314, 316 (1966).

Valcarce v. Fitzgerald, 961 P. 2d 305 (Utah 1998)

In the present case, the Fitzgerald parties proved the elements necessary to give rise to the presumption of adverseness. The Valcarces did not then present evidence to prove that the initial use of the easement was permissive such as to rebut the presumption. Therefore, we conclude that the trial court did not err in finding establishment of the easement. The fact that the judge urged the Valcarces to act in a neighborly fashion and to permit the Fitzgerald parties to use the easement certainly does not show that the use of the canal over the twenty-year prescriptive period was permissive. This court has affirmed findings of adverse use and, thus, prescriptive right in other cases in which the former landowners displayed "neighborliness." See, e.g., Richins, 412 P.2d at 315 (relatives worked together to build common driveway); Zollinger, 175 P.2d at 716-17 (former servient estate owner removed broken bridge across irrigation ditch and immediately notified claimant, indicating cordial neighborly relations); Crane v. Crane, 683 P.2d 1062, 1065 (Utah 1984) (servient estate owners provided claimants with key to gate that accessed easement road on which claimants drove their cattle). Although each of these factual situations involved acts of neighborly accommodation and cordial relations, we nevertheless upheld the adverse presumption in the absence of sufficient proof that the use was initially permissive. As we stated in Richins, the fact that the parties were initially friendly or cordial with one another does not prevent a prescriptive right from arising.

Valcarce v. Fitzgerald, 961 P. 2d 305 (Utah 1998)

The law presumes that use of another's property is adverse if the elements of prescriptive easement are otherwise satisfied. Crane, 683 P.2d at 1065 (citing Lunt v. Kitchens, 123 Utah 488, 260 P.2d 535, 537 (1953)). However, the owner of the servient estate (Sandy Hills) may overcome that presumption by presenting evidence that the use 627*627 was permissive. Id.; see Richards v. Pines Ranch, Inc., 559 P.2d 948, 949 (Utah 1977).

Homer v. Smith, 866 P. 2d 622 (Utah 1993)