As people continue to move to rural areas of Montana from states that don’t have the same Western heritage we have, it is increasingly more common for out-of-staters to attempt to block other people’s road easements by, for example, putting up a fence. They’ve never heard of an express easement, implied easement, easement by necessity, or prescriptive easement; they just think that a road physically on their land is theirs to control. Montana law says otherwise (in appropriate circumstances).

In a nutshell, an express easement is one that is recorded with the county like a deed. It defines the access rights the road user has across the land of another.

An implied easement is, as the name implies, one implied from when the land was last divided. For example, when a road went over the whole parcel an implied easement can exist after the land was divided.

There are also easements by necessity, which, as the name implies, are unrecorded easements that are necessaary to give access to a parcel surrounded by another owner.

Another kind of easement is a “prescriptive” easement. It basically is the right to use an easement that has been used for the past five or more years. That is, a prescriptive is created not by a recorded document but rather by actual use for the past five or more years. See Montana Code Annotated 70-19-404. The user of the prescriptive easement can, if necessary, go to court and have a judge declare the existence of the easement. See generally JRN Holdings, Inc. v. Dearborn Meadows Land Owners Ass’n, 405 Mont. 200, 493 P.3d 340, 2021 MT 204.

What should you do if a neighbor is blocking your road access? Call Overstreet Law Group.

(This information is of a general nature; exceptions to these general statements might exist. This information is for general educational purposes only; no attorney-client relationship is formed unless a person enters into a written representation agreement with Overstreet Law Group, LLC.)