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Prescriptive Rights Presumed if Use Over Twenty Years

To establish a prescriptive easement, a person must show, "by clear and convincing evidence," Buckley v. Cox, 247 P.2d 277, 279-80 (Utah 1952), that his "use of another's land was open, continuous, and adverse under a claim of right for a period of twenty years." Valcarce v. Fitzgerald, 961 P.2d 305, 311 (Utah 1998); see also Orton v. Carter, 970 P.2d 1254, 1258 (Utah 1998). However, "once a claimant has shown an open and continuous use of the land under claim of right for the twenty-year prescriptive period, the use will be presumed to have been adverse." Id. The burden then shifts to the property owner who opposes the easement to "establish[] that the use was initially permissive." Id. at 311-12. Each of the elements of prescriptive easement must be proven by clear and convincing evidence. Lunt v. Lance, 2008 UT App 192, ¶ 18, 186 P.3d 978.