Property II, Pages 543–547

Melendez v. Hintz

Idaho Court of Appeals, 1986


Plaintiffs used a driveway that ran across his neighbor's property for 20 years. The property that it ran across was then purchased by defendant, who began obstructing plaintiffs' use of the driveway.

Plaintiff's Argument:

Plaintiffs acquired a prescriptive easement by adverse use of the driveway.

Procedural History:

District court held that plaintiffs had acquired an easement.


Did plaintiffs gain an easement?


  • LexisNexis IconWestLaw LogoGoogle Scholar LogoPage 544, Bottom

    A claimant, in order to acquire a prescriptive easement in Idaho, must present reasonably clear and convincing evidence of open, notorious, continuous, uninterrupted use, under a claim of right, with the knowledge of the owner of the servient estate for the prescriptive period.

  • A use of someone else's land is presumed to be adverse and under a claim of right. The burden is on the owner of servient tenement to show that use was permissive.


    • If the land was unimproved, its use is presumed to be permissive.

    • If the owner constructs a way over the land for his own use and convenience, others using it without interfering with his use is presumed to be permissive.


There is no evidence how the use began, but it was built by the previous owners, who presumably used it jointly with permission. This would seem to presume that it was permissive use, but plaintiffs' predecessors created their own driveway system branching off defendant's driveway. This addition is not in common with the owners of defendant's lot and constitutes an invasion of their rights, making the use adverse. This means that plaintiff's use gives them an easement to the property they were using.


Plaintiffs acquired a permissive easement through their adverse use. Affirmed.