An easement can be defined as “a nonpossessory right to use another’s property in a manner established by either express or implied agreement”.
An express agreement can be oral or written and would indicate that two or more parties have agreed upon something. For our purposes, the parties would have agreed upon an easement.
On the other hand, a implied agreement may be what most attorneys view as the primary contributor to lawsuits. This is because an implied agreement is not expressed in words but understood from actions or circumstances. The word understood allows for two or more parties to interpret actions or circumstances differently, hence the lawsuit.
An example of an express agreement might be two neighbors talking, both share easements rights to use a certain portion of the same road. Neighbor one has a short driveway leading to his home from this common road, neighbor two has a 400 yards driveway leading to his home but could have a 100-foot driveway to his home if neighbor one will allow him to cross a portion of neighbor one’s private property. If neighbor one agrees in writing or orally to allow neighbor two the use of his private property, then an express agreement has been formed.
Now let’s look at a possible scenario of an implied agreement using the same two neighbors. Neighbor one has seen neighbor two drive through a portion of his private property without his express agreement, neighbor two is using neighbor one’s private property as a driveway to access his home. Neighbor one did nothing to prevent neighbor two from using his private property. This may be considered an implied agreement, at least by neighbor two!
If neighbor two has used his neighbor one’s property for a certain length of time and neighbor one does not try to prevent neighbor two from using his property during that time frame, then another type of easement may come into play called a “ Prescriptive Easement&rdquo.
A prescriptive easement is acquiring an interest in real property (usually an easement) by using it openly and without the owner’s permission for the period prescribed by the statue.
Now you know why so many people own shotguns and barking dogs.