Definition
Discontinuous, in legal usage, describes something that occurs occasionally, intermittently, or through separate repeated acts rather than continuously. The term appears almost exclusively in property law, where it characterizes a category of easements and servitudes distinguished by the manner of their use and exercise.
A discontinuous easement is one that requires the affirmative, periodic act of a person to bring it into use. It does not operate passively and without interruption — it exists in a dormant state and is activated only when the holder chooses to exercise it. A right of way used periodically to cross a neighbor's land is the classic example: the right exists at all times, but it is only exercised in discrete, separate acts.
Common Language
Modern common usage (Wiktionary): Not occurring continuously; having gaps or interruptions; lacking continuity.
Historical common usage (Webster's 1913): Interrupted; not continuous; having interstices or gaps; not joined continuously.
The ordinary meaning of "discontinuous" maps reasonably well onto the legal meaning, but with an important distinction. In common usage, discontinuous implies something broken or defective — a signal, a line, a process with unwanted gaps. In property law, the distinction is neutral and technical: a discontinuous easement is not a lesser or defective form of easement. It is simply a category defined by how the right is exercised, and the classification carries real consequences for how the easement is created, proved, and maintained.
Common Confusion
Discontinuous easements are frequently confused with non-apparent easements, and in some civil law traditions the two concepts overlap in the same classificatory scheme. A discontinuous easement requires a human act to be exercised; a non-apparent easement leaves no visible sign on the servient estate. These are independent axes of classification: an easement can be discontinuous and apparent (a well-used footpath that shows physical signs of use but requires someone to walk it each time), or discontinuous and non-apparent. Researchers should be careful not to collapse the two distinctions, particularly when working with sources drawn from civil law or mixed-jurisdiction traditions such as Louisiana or Quebec.
Why It Matters in Research
The discontinuous/continuous distinction is one of the older organizing frameworks in easement law, and its significance varies dramatically depending on the legal tradition the source reflects.
In common law jurisdictions, the distinction carries limited formal weight today. Courts rarely turn on whether an easement is technically discontinuous, preferring instead to analyze prescriptive rights, notice, and adverse use in their own terms. However, in historical sources — particularly treatises from the nineteenth and early twentieth centuries — the distinction is foundational to how easements were classified and analyzed. Researchers working with older materials should recognize the term as a marker of that framework.
In civil law and mixed jurisdictions, the classification is more structurally significant. Louisiana's civil code, for example, has traditionally organized servitudes along continuous/discontinuous and apparent/non-apparent lines, and the categories determine which servitudes can be acquired by prescription and which cannot. A discontinuous servitude in Louisiana historically could not be established by acquisitive prescription; it required a title. This rule has consequences for how historical chains of title and servitude claims must be researched in those jurisdictions.
Researchers using Black's supplemental entries should note that the second edition's treatment is telegraphic — it points to the concept without fully developing the doctrinal implications. The entry cross-references "Easement" as the operative location for full treatment. Any research into discontinuous easements should begin with the main easement entry and related treatise sources rather than relying solely on this supplemental definition.
Historical Dictionary Support
Black's Law Dictionary (2nd Ed.) Supplemental defines discontinuous as "occasional; intermittent; characterized by separate repeated acts," and cites discontinuous easements and servitudes as the operative legal context. The definition is accurate but skeletal. It captures the essence of the concept — the dependence on repeated human acts — without addressing the doctrinal consequences of the classification.
Historical sources on this term generally reflect a civilian inheritance. The continuous/discontinuous distinction was drawn from Roman law through French civil law sources and entered Anglo-American legal writing primarily through treatises on property and easements in the nineteenth century. Writers like Gale on Easements engaged the distinction in their analytical frameworks, though common law courts were often less committed to the taxonomy than their civilian counterparts.
What the historical dictionaries do not capture is the gradual erosion of the distinction's practical importance in common law jurisdictions over the twentieth century, or the way mixed-jurisdiction courts have continued to apply it with more doctrinal rigor. The historical entries treat the classification as stable and universal; modern research must account for the fact that it is neither.
Jurisdictional Note
The discontinuous/continuous distinction retains active doctrinal importance in Louisiana and other mixed civil law jurisdictions, where it has historically affected the prescriptibility of servitudes. In common law jurisdictions, the classification survives primarily as an analytical descriptor in treatises and older cases rather than as a formal legal test.