How is a prescriptive easement established?
A prescriptive easement is established once the claimant has fulfilled the above requirements for a period of 10 years. Once established, the prescriptive easement continues in existence unless terminated. Mere non-use does not by itself terminate an easement.
Establishing a prescriptive easement does not require a court judgment; although, as a practical matter, that may be desirable, especially if the landowner disputes the existence of the prescriptive easement. A court judgment may also be desirable because it can be recorded with the County.
In a lawsuit seeking to prove the existence of a prescriptive easement, the claimant must show, by a preponderance of the evidence, the existence of each of the elements discussed above. However, proving hostility would require that the claimant prove a negative (i.e., that the claimant used the land without the landowner’s permission). Some Washington cases therefore hold that if the claimant proves the existence of the other elements, the element of hostility will be presumed. In that case, the burden would shift to the landowner to show that the claimant had permission to use the land.