Wis JI-Civil 8065

(Prescriptive easement user) claims that it is entitled to a nonexclusive use of (title

holder)’s real estate for the purpose of (describe use, e.g., transmitting power or electric

current). This is called a prescriptive easement. To establish a claim for a prescriptive

easement, (prescriptive easement user) must prove the continuous use of (describe use, e.g.,

transmitting power or electric current) in real estate of another1; which was visible, open,

and notorious; for ten years2.

[A continuous use is one that is neither voluntarily abandoned by the party claiming a

prescriptive right nor interrupted by an act of the landowner or a third party.]3

[A visible, open, and notorious use is one that would put a reasonably diligent

landowner on notice of the use.]4

[Note: The following paragraph should be given where the use claimed to be

continuous is seasonal in nature: Where the use is seasonal in character, the requirement

of continuity is satisfied by the use of the real estate according to the existing seasonal uses,

needs, requirements, and limitations, taking into consideration the location and the

adaptability of the real estate for the seasonal use.]

(Title holder) is presumed to be in possession of the real property claimed by

(prescriptive easement user). Therefore, the burden is on (prescriptive easement user) to

establish its claim. Finally, (prescriptive easement user) has the burden of proof to clearly

define the area of land over which it has continuously asserted use of rights for ten years.

While absolute precision or utilization of a surveyor is not required to establish lines of

occupancy, the evidence must provide a reasonably accurate basis upon which to determine

the boundary of the proscriptive easement.

[Burden of Proof, Wis JI-Civil 200]