South-Western Legal Studies in Business

Power Company Obtained Prescriptive Easement for Power Lines
Description Montana high court held that an electric power company that had power lines over and under the owner's property, but that never received an easement from the property owner, had a prescriptive easement due to more than five years of open and notorious use.
Topic Real and Personal Property
Key Words Trespass; Conversion; Unjust Enrichment; Prescriptive Easement; Utilities
C A S E   S U M M A R Y
Facts The Montana Power Company (MPC) placed an overhead power line in 1964 and an underground power line in 1978 on property owned by the Taylors. No easement was ever recorded for these lines. In 2000, the Taylors sued MPC for trespass, conversion and unjust enrichment. MPC contended that it had a prescriptive easement for the lines and the district court agreed. The Taylors appealed.

Affirmed. "To establish a prescriptive easement, a claimant must establish open, notorious, continuous, uninterrupted, exclusive and adverse use for five years. The claimant must prove these elements by clear and convincing evidence. Finally, a claimant's failure to prove any element for the full prescriptive period is fatal to the entire claim." Here, the use was for more than 20 years and was open, since the electric transformers were visible. The easements obtained by MPC are a mere right to use, not a right to secure title, nor a possessory interest.

Citation Taylor v. Montana Power Co., 312 Mont. 134 (2002 WL 31570269, Sup. Ct., Mont., 2002)

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