SW Legal studies in Business

Adverse Possession of Easement Must Be Substantial

Alaska high court held that for a property owner to extinguish an easement on his property, there must be adverse possession for at least ten years. That means there must be occupation of the easement by significant and costly use of the property.

Topic Real and Personal Property
Key Words

Easement; Trespass; Quiet Title

C A S E   S U M M A R Y

Davis and Hansen are neighbors in Ketchikan, Alaska. They own adjacent lots. When Davis bought the property in 1984 from Rodgers, the warranty deed reserved an easement across the Davis lot to the property now owned by Hansen. Rodgers apparently hoped eventually to buy the property now owned by Hansen, but that never happened. The easement in the deed to Davis from Rodgers said that the easement on the land being bought by Davis “shall be only for the benefit of Grantor [Rodgers], his grantees, heirs and assigns.” When Davis bought the lot, he asked a lawyer about the validity of the easement. The lawyer advised that it was not legally enforceable. Davis put a garden on the easement area. Hansen bought the property in 2006 and offered Davis $5,000 for an easement to access the property. Davis said no. Hansen then bought the easement written in 1984 from Rodgers’ widow as she was the heir to his property. Hansen told Davis he now had an easement across Davis’ property and cleared the area for a road and water and sewer lines. Davis sued Hansen in 2008 for trespass. Hansen responded, seeking to quiet title to the easement. The trial court held for Davis, finding that Hansen engaged in adverse possession of the easement, which extinguished it. The court ordered Hansen to pay $13,345 in “restoration” damages. Hansen appealed.


Reversed and remanded. The easement holder, Hansen, should not have engaged in self-help by clearing the alleged easement area since the owner of the servient estate, Davis, disputed the validity of the easement. The proper remedy for a disputed easement is to file a quiet title action to establish the validity of the easement. Davis claims the easement was extinguished by prescription (adverse possession)—open and notorious use of the easement area for a ten-year period. That means the use of the easement by Davis interfered with the use of the easement by the easement holder. Temporary improvements, such as a garden, will not trigger the prescriptive period. The improvements must be permanent and expensive and be difficult and damaging to move. Since the garden was easy to move, there never was a prescriptive period; that is, there was no adverse possession of the easement.

Citation Hansen v. Davis, ---P.3d--- (2009 WL 3681642, Sup. Ct., Alaska, 2009)

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