Idaho Easement Law

An easement is a non-possessory right to use the land of another for a limited purpose. An easement may be for the benefit of the adjoining land or for the benefit of a specific individual or business. If an easement is for the benefit of adjoining land, it is known as an appurtenant easement. If an easement is for the benefit of a specific individual or business, it is known as an easement in gross.

How Easements May be Created in Idaho

Under Idaho law, easements may be created in several ways:

• By Express Grant;
• By Prescription;
• By Necessity; and
• By Implication From A Prior Use.

Easements By Express Grant – The law prefers that parties create easements by express grant. An easement by express grant is created by executing a written agreement that sets forth the scope of the easement as well as its location and dimensions. Express easements are typically created by deed or contract.

Easements By Prescription – Under Idaho law, a claimant must satisfy a five-prong test before a court will find that an easement by prescription exists. A claimant must prove that:

1. His use of the land over which he claims the easement is open and notorious;
2. His use has been continuous and uninterrupted;
3. His use is adverse and under claim of right;
4. His use is with the actual or imputed knowledge of the owner of the servient tenement (the property burdened by the easement); and
5. His use has continued for five years or more.

Easements By Necessity – To establish an easement by necessity, a claimant must prove that:

1. There was unity of title between the dominant and servient estates followed by a subsequent conveyance of the dominant estate (the property which benefits from the easement);
2. The necessity of the easement existed at the time of the severance; and
3. There is a great present necessity for the easement.

Easements By Implication From a Prior Use – To establish an easement by implication, Idaho laws requires that a claimant prove three essential elements.

1. He must demonstrate unity of title or ownership and a subsequent severance of the dominant estate;
2. He must demonstrate apparent continuous use long enough before the dominant estate was transferred to show that the use was intended to be permanent; and
3. He must demonstrate that the easement is reasonably necessary to the use and enjoyment of the dominant estate.

Easement Disputes

One of the most common easement issues involves encroachments. When a landowner erects improvements which encroach on adjoining land, he may be required to remove the improvements or to pay the adjoining landowner for an easement. Other easement disputes may involve allegations of:

• Misuse;
• Interference; and
• Abandonment.

Help from a Real Estate Attorney in Ideao

Before erecting improvements, it's advisable to have a current survey completed and to consult with an experienced real estate attorney. A real estate attorney will review the survey and inspect the title so as to ascertain the true boundary lines of the property as well as other relevant information that could impact the placement of improvements on the property.

If you are involved in an easement dispute, you should consult with a real estate attorney who will review the facts of your case to determine whether you have a valid claim or defense. Your real estate attorney will advise you as to the best course of action to protect your interests.