Trying to use Easement Rights! Dealing with Swindler Type!

[justalayman]

Thanks stevef.

I suppose it makes some logical sense as an express easement is a deeded interest and there shouldn't be any less ability to lose that interest due to adverse possession than any other interest. The only argument I can imagine to counter that would be one that the owner (and following holders of his interest) has explicitly granted the right to utilize the easement as described. It is kind of like me offering you the use of something of mine, in an irrevocable method, yet, if you fail to use it, I get to rescind the transfer of rights. Unless such a right is reserved, I have a hard time accepting the right to rescind that right.

I guess it falls back to the old; use it or lose it issue.

I love the case you cited. If there was ever a statement more back and forth and outright confusing than this one, I cannot recall it:

In this case, the trial court's findings of fact state that the easement was expressly created by warranty deed in 1901 and that there was no evidence presented at trial regarding whether the easement was used as a right-of-way in 1901. It is undisputed that the easement has never been used as a right-of-way since 1969. Our review of the record reveals that there was no evidence presented at trial regarding whether the easement was ever used as a right-of-way between 1901 and 1969. For these reasons, we conclude and hold that the Lovingoods' use of the easement area was not adverse to Matoush's right to use the easement as a right-of-way until Matoush needed to use it for that purpose in 2003. Hence, we reverse the court of appeals' decision and affirm the trial court's ruling that Matoush retains her right to use the easement as a right-of-way for access between her property and the alley. We return this case to the court of appeals to be returned to the trial court for an entry of judgment consistent with this opinion.