An easement implied from prior use requires an analysis of the prior use of the land, not the intent or expense of future use. To establish an easement implied from prior use, a party must establish four elements: (1) that the parcels of land had been in unitary ownership; (2) the use at issue was in existence at the time of severance of ownership; (3) the use had been so long continued and so obvious to show that it was meant to be permanent; and (4) that the easement was necessary for the enjoyment of the dominant tract. The South Dakota Supreme Court’s opinion focused primarily on the third element, and found that the relevant inquiry is the nature of the past use, and not the current condition of the easement, the need and costs of future repairs, or the intent of the parties as to the continued use.
This GPNA tip of the week is brought to you by Huemiller v. Hansen, 2020 S.D. 56, — N.W.2d —. The opinion was released by the South Dakota Supreme Court on October 14, 2020, and reversed the circuit court’s decision to deny Heumiller’s claim for a prescriptive easement on summary judgment. The South Dakota Supreme Court found that the circuit court improperly focused its inquiry relative to the third element on the anticipated need for future repairs rather than the history of the use to determine that the use was not permanent. The Supreme Court also took issue with the circuit court’s analysis under the summary judgment standard and found that the court improperly weighed the evidence on elements three and four where there were disputed issues of material fact.