Zoog, I agree for the most part but at least in some states de facto easements are defined by use and require NO documentation. They aren't defined in writing and they do come into existence spontaneously. I think the term is "prescriptive easement". They are implied easements, which is another general type of unwritten easement.
Like I said I know different people who have dealt with various property disputes, read through much of thier legal paperwork and seen the process for various easements as well as adverse possession in several seperate cases.
In general consent, specific or implied by not stopping tresspassing is given. Once that consent is given for a length of time an easement can be established.
If they use that land openly, hostile and notoriously (not sneaky or secretive) for a length of time without being stopped they can actualy pay the taxes and claim ownership of someone else's land. An easement is obviously much easier. However they are related in that an owner in disproving one can actualy be a witness against themselves in proving the other if they are not careful.
The one who believes they have an easement, or need an easement needs to prove prior use in court. Many people simply fold in court, and don't stand up for themselves due to cost. This is often where you here about hunters getting easements etc. In all honesty it would be difficult for a hunter to legaly prove use of a random spot in the wilderness without documentation, pictures with landmarks, and etc. It would be a very lengthy and expensive process.
My house has a loop driveway that is outside the fence line. Unfortunately, when the road in front of my house is blocked people can use my driveway as a detour. Fortunately I have a set of wire fences that can and periodically do close the driveway off. Closing the loop driveway off periodically (once a year or so) is intended as a means of ensuring that a public easement doesn't magically appear to make my driveway into a street anyone can use when it is in better condition than the road. Such things happen all the time.
Then you are consenting to the use of your driveway by knowing about it and not putting a stop to it. That consent leaves you open to an easement.
Stopping it once a year just protects you from adverse possession because nobody will use it for the necessary number of years uninterupted, not an easement.
Adverse possession is possible when use of land is done for a length of time openly and hostile without permission. When permission is granted the clock for adverse possession is reset. States tend to have times ranging from 5-20 years of uninterupted use required for adverse possession.
While granting permission would reset the clock for adverse possession, it would also grant a defacto easement (that would still have to be proven in court if challenged) in many situations. So you must prevent and stop physical use of your land.
Failure to do anything is a choice in itself.
The only real solution is to have a survey done at the purchase of any land and install a fence on the borders and let nobody tresspass, ever, for any reason. It is your responsiblity as a property owner to control your land, failure to do so will result in others gaining some control or complete ownership of it or parts of it.
Tresspassing is an offense, but if people break the law for a length of time it becomes not just legal, but they can claim the land or be entitled to some use of the land.
Good way to make enemies of your neighbors.
It is not about "getting along" it is about keeping legal ownership of the land you have paid for. If someone is too passive to stand up for thier property then thier property will no longer be thiers. Remember the old saying "A fool and his money are soon parted"? The same goes for property. If someone is too timid to enforce no tresspassing then they will deal with the consequences.
The only people on your land should be your agents, people visiting you or in a contract of some sort (like renting to them), or licensees.
The law does not have an exemption for "nice guys."
Avoid, avoid, avoid!
