Tom Donald's Program Notes

Capital Ideas - Live! webcast -- May 20, 2015

Tom Donald will discuss the problem created for Alabama landowners by a recent ruling of the Supreme Court of Alabama regarding uses of easements. To address this problem, House Bill 626 has been introduced in the Legislature by State Representative Jim Carns.

Moderator: Tom, what was the ruling which resulted in the need for House Bill 626?

Tom: The Supreme Court affirmed a circuit court decision granting an easement by prescription to someone claiming to have adversely used an easement by necessity. This ruling puts the rights of all Alabama land owners at risk. The case is documented at where there is a link to a page explaining why legislation is needed because of the ruling.

Moderator: Tom, what is an “easement by prescription”? What is “adverse” use? What is an “easement by necessity”?

Tom: If someone uses real property which he has no right to use for a long enough time, then he gains a permanent right to use that property. This is called a “prescriptive easement”. In such a situation, he is said to have been using the property “adversely” to its owner. A property owner has a responsibility to stop someone from adversely using his property. If an owner does not stop adverse use, a court can deprive him of rights regarding his property.
     On the other hand, there are some situations where a landowner must permit someone’s use of his land. For instance, when someone has no other way to reach his property from a public road, a landowner must provide that person with an easement across his land. This is called an easement by necessity. A landowner might also give someone written permission to cross his land. This is called an easement by license. Also, such easements can be created expressly and by implication.

Moderator: Tom, what is the problem created by the Supreme Court ruling, and how does House Bill 626 solve it?

Tom: Say a person is using an easement permissively. Suppose that this person later claims that he was using the easement adversely. It should be impossible for someone to have used an easement adversely when he had permission to use the easement; however, the concept of “adverse use” is not precisely defined. Anyone can claim that they have been operating adversely and, if a judge or a jury sides with him, that person can be awarded an easement by prescription to forever continue to do what he claimed to have been doing adversely. Such a decision would certainly harm a landowner who had granted someone permission to use his land.
     Courts in other states recognize a rule advocated by the American Law Institute. This rule is:

“Uses made pursuant to licenses are not adverse,
nor are uses made pursuant to servitudes created
expressly, by implication, or by necessity.”

     Application of this rule would avoid the paradox of a permissive easement being used adversely. However, the recent Supreme Court of Alabama decision shows that this rule is currently not part of Alabama law. Therefore, House Bill 626 has been introduced to give Alabama Courts proper guidance regarding this issue. House Bill 626 will incorporate by statute the concepts in the American Law Institute rule into Alabama law. This would solve the problem for everyone; but, the bill is currently awaiting action by the House Judiciary Committee.
     If you agree with the proposed legislation, please contact your State Senator and State Representative and ask them to support it in this session of the Legislature which ends in a few weeks.