What distinguishes an 'easement by necessity' from an 'easement by prescription'?

An easement by necessity is fundamentally linked to the need for access to a parcel of land. It arises when a property is landlocked, meaning that it has no legal access to a public road or right-of-way without crossing another property. In such cases, the law allows for the creation of an easement to ensure that the landlocked property has the necessary access for its reasonable use. This type of easement is typically established at the time of property division and is considered essential to the property’s use.

In contrast, an easement by prescription is established through the continuous and open use of someone else's property without permission, for a specific period defined by state law. This type of easement does not require the necessity of access; instead, it is based on the duration and nature of the use. If a person has been using a path across a neighbor’s property openly, without objection, and meets the state’s required time frame for possession, they may acquire an easement by prescription.

Thus, the distinction lies in the basis for each type of easement: necessity focuses on access required for practical use of the land, while prescription is grounded in long-term, unauthorized use of someone else’s property.