Definition
A discontinuous easement is an easement whose use requires an affirmative, repeated act by the holder each time the right is exercised. The right exists continuously as a legal matter, but it is only physically manifested through human intervention — the holder must actively do something to enjoy it. Classic examples include a right of way (the holder must physically travel over the servient land), a right to draw or take water from a well or stream, and a right to cut timber or harvest crops. Between each act of exercise, there is no ongoing physical expression of the easement on the land.
This stands in contrast to a continuous easement, which is one whose benefit flows without any recurring act by the holder — a drainage pipe, a light shaft, or an air duct continues to function whether or not the holder does anything. The distinction is about the mode of enjoyment, not the legal durability of the right.
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Common Confusion
DISCONTINUOUS EASEMENT vs. CONTINUOUS EASEMENT: The pairing is frequently misread. "Continuous" and "discontinuous" here describe the physical character of enjoyment, not whether the easement is in constant use or legally perpetual. A right of way is "discontinuous" even if the holder uses it every single day, because each use requires a discrete act. A drainage easement is "continuous" even if the pipe is dry for months, because the physical apparatus operates without human intervention whenever conditions trigger it. Researchers reading older sources must hold this distinction firmly — the terms describe mechanism, not frequency or duration.
DISCONTINUOUS EASEMENT vs. APPARENT/NON-APPARENT EASEMENT: Historical civil-law influenced sources (particularly French-derived doctrine and some early American treatises) cross-classify easements on two axes: continuous/discontinuous and apparent/non-apparent. These are independent classifications. A discontinuous easement may be apparent (a worn track marking a right of way) or non-apparent (a right to draw water with no visible infrastructure). The Black's tradition tends to foreground the continuous/discontinuous axis; researchers working in Louisiana or with civil-law sources will encounter the full four-part grid.
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Why It Matters in Research
The continuous/discontinuous classification carries significant doctrinal weight in two contexts where researchers most often encounter it.
First, prescriptive easements. Most jurisdictions require that prescriptive use be open, notorious, hostile, and continuous for the statutory period. Courts have historically held that a discontinuous easement can still be acquired by prescription, but the "continuity" requirement is measured differently — it means regular, periodic use consistent with the nature of the right, not uninterrupted physical presence. A right of way used weekly may satisfy continuity; one used sporadically over years may not. Researchers reading older cases must pay close attention to how the court is using "continuous" — it may refer to the prescriptive use standard, not to the continuous/discontinuous easement classification.
Second, implied easements and easements by necessity. Some older treatises and cases held that only continuous and apparent easements could be implied from prior use — the logic being that a non-apparent or discontinuous easement left no visible trace on the land to put a purchaser on notice. This rule has eroded substantially in modern American law, where most jurisdictions allow implied easements for discontinuous uses if the prior use was reasonably necessary and apparent from the circumstances. Researchers relying on 19th-century treatises (Washburn, Gale) should flag this shift: the stricter rule they state may not reflect current doctrine in the researching jurisdiction.
The terminology itself is more alive in older sources than in modern judicial opinions. Contemporary courts rarely use "discontinuous easement" as a term of art; they describe the character of the use functionally. Researchers searching modern databases for this phrase will find thin results and should pivot to searching by the type of easement (right of way, water rights, timber rights) and the doctrinal context (prescription, implication, notice).
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Historical Dictionary Support
Black's Law Dictionary defines a discontinuous easement as one "the enjoyment of which can be had only by the interference of man, as rights of way, or a right to draw water; as distinguished from a continuous easement, which is one the enjoyment of which is or may be continual, without the necessity of any actual interference by man, as a water-spout, or a right of light or air," citing Washburn on Easements and Gale on Easements. This formulation is clean and has remained stable across editions. It tracks the classical civil-law taxonomy that English and American courts absorbed through Gale and Whatley and, in the American tradition, through Washburn.
The definition's core insight — that the distinction turns on whether human action is required to realize the benefit — is well-settled and uncontested across the historical sources. Where the sources are less helpful is in tracing how the classification interacted with the emerging American law of prescriptive easements and implied easements, both of which developed largely after the treatise tradition that Black's draws upon. The citations to New York and Michigan reporters in the Black's entry reflect that courts were actively working through these implications in the late 19th century, but the dictionary entry itself does not develop the doctrinal consequences.
Washburn's Treatise on Easements and Gale on Easements remain the authoritative historical treatments. Both are organized around the civil-law taxonomy and provide useful foundational analysis, though neither anticipates the full shape of 20th-century American easement doctrine.
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Jurisdictional Note
Louisiana, as a civil-law jurisdiction, retains the full civil-law taxonomy of easements — continuous/discontinuous and apparent/non-apparent — as operative legal categories under the Louisiana Civil Code. In common-law states, the classification survives primarily as an analytical tool in prescription and implication cases rather than as a formal doctrinal category with independent legal consequences.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia:
— Easements: Creation by Prescription (property_72) — the prescriptive continuity requirement as applied to discontinuous uses
— Easements: Transfer and Assignment of Easements (property_74) — how the character of the easement affects transferability analysis
— Easements: Utility Easements and Conservation Easements (property_76) — modern easement forms that often involve the continuous/discontinuous distinction in infrastructure contexts
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