A Path is Blocked After 40 Years. What’s Our Legal Right?

Question: We have a cabin in the White Mountains near Heber. My wife’s grandfather built the cabin in the 1980s. Although we go up to the cabin every weekend in the summer, the rest of the year we only occasionally go up to the cabin. There is a footpath to a creek about 50 yards away from our cabin. The kids have always used this footpath to the creek when we stay at our cabin. The last time that we went to our cabin, however, the kids couldn’t get to the creek because there was a fence blocking the footpath. The fence had a “No Trespassing” sign and the owner’s telephone number. When we called the owner, he said that trespassers to the creek were destroying his land, and that he would call the police if we trespassed on his land. After more than 40 years of our family regularly using the footpath to the creek, do we have any rights?

Answer: Probably. After more than 40 years of use of the footpath by you and your family, you should have a claim for a prescriptive easement/adverse possession to continue to use the footpath over the same pathway. For example, since 1540 the Zuni Indians have made a pilgrimage every four years to their place of origin in Apache County. After the landowners fenced off the pilgrimage pathway, an Arizona federal court granted the Zuni Tribe a 50-foot wide prescriptive easement to travel over this 50 feet every four years. 730 F.Supp. 318. Similarly, the Arizona Court of Appeals has granted a prescriptive easement/adverse possession of a pathway over a parcel of land, primarily because of “three weeks of continuous physical presence” of the pathway during the summer every year for more than 10 years. 475 P.2d 1.