Definition
A discontinuous easement (also called a non-continuous easement) is an easement whose exercise requires an affirmative act by the person entitled to use it. Between acts of use, no physical or visible evidence of the easement exists on the land. The classic example is a right of way: the holder must physically walk, ride, or drive across the servient estate each time the easement is exercised. When no one is using it, nothing on the ground marks or manifests it.
Discontinuous easements are defined in contrast to continuous easements, which operate without any act by the holder — such as a drain or an aqueduct that carries water passively at all times. The continuous/discontinuous distinction is structural: it turns on whether the easement's enjoyment depends on recurring human action.
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Common Confusion
DISCONTINUOUS vs. CONTINUOUS EASEMENTS: The pairing is often misread as a distinction between easements that are used frequently versus infrequently. That is incorrect. The distinction is not about frequency of use but about the nature of the enjoyment itself. A right of way used every day is still discontinuous, because each use requires a volitional act. An underground drain used only during seasonal rain is still continuous, because it operates without any act by the holder. Researchers encountering older English and American treatises must be careful: the word "continuous" carries a technical meaning that does not track ordinary usage.
DISCONTINUOUS EASEMENTS vs. APPARENT/NON-APPARENT: Historical sources, particularly those drawing from French civil law, sometimes layer a second axis of classification — apparent versus non-apparent — onto the continuous/discontinuous distinction. These are separate questions. An easement can be discontinuous and apparent (a worn path is visible) or discontinuous and non-apparent (a right to draw water leaves no visible trace). Conflating the two axes produces significant errors when tracing implied easement doctrine.
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Core Elements
The traditional definition contains two operative components:
1. NO SPECIALLY CONSTRUCTED OR APPROPRIATED MEANS: A discontinuous easement has no physical infrastructure permanently dedicated to its enjoyment. There is no pipe, no channel, no structure that sits on the land serving the easement at all times.
2. ENJOYMENT REQUIRES THE ACT OF THE PARTY: Each instance of use demands a volitional, affirmative act by the easement holder. The easement lies dormant between uses. As Bouvier states, a right of way is the paradigm case: the holder must traverse the land; the easement does not operate on its own.
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Why It Matters in Research
The continuous/discontinuous classification carries significant doctrinal weight in two areas that researchers encounter frequently.
PRESCRIPTIVE EASEMENTS: Many jurisdictions historically required that use be "continuous" to establish a prescriptive easement. When that word appears in older cases and treatises, it does not mean that the use must be uninterrupted in the sense of the discontinuous/continuous classification — it means the use must be regular and unabandoned over the statutory period. A right of way (paradigmatically discontinuous) can absolutely be acquired by prescription. Researchers must not allow the classification terminology to mislead them into thinking prescriptive acquisition is unavailable for discontinuous easements. The two uses of "continuous" operate on entirely different axes.
IMPLIED EASEMENTS: The continuous/discontinuous distinction was historically pivotal to whether an implied easement could arise on severance of title. The older English rule, traceable to cases like Wheeldon v. Burrows and reflected in treatises drawing on French sources, held that only continuous and apparent easements would pass by implied grant. Discontinuous easements — rights of way being the prime example — required express grant or prescription under the strict version of this rule. American jurisdictions adopted varied approaches, and many modern courts have abandoned or softened the restriction. Researchers working in late 19th or early 20th century American property sources will find this distinction actively litigated and should not assume that the modern rule in a given jurisdiction tracks the historical one.
HISTORICAL SOURCES AND FRENCH CIVIL LAW INFLUENCE: Bouvier's formulation draws directly from the French civil law tradition, which provided the clearest early taxonomy of easement types. English common law adopted the classification unevenly. American treatises of the 19th century — including those by Kent, Washburn, and later Tiffany — engaged with the distinction but applied it with varying degrees of fidelity to the French original. Researchers should be alert to the fact that the same term may carry subtly different doctrinal consequences depending on whether a source is drawing from civil law, English equity, or American common law traditions.
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Historical Dictionary Support
Bouvier's Law Dictionary provides the core formulation: discontinuous easements are those with "no means specially constructed or appropriated to their enjoyment," enjoyed "at intervals, leaving between these intervals no visible sign of their existence," and requiring "the act of the party" for their enjoyment. Bouvier cites an English Queen's Bench authority for the proposition, consistent with the English treatise tradition that absorbed and adapted the French classification.
Bouvier's entry is useful but compressed. It does not address the doctrinal consequences of the classification — particularly for implied easements — which were worked out in case law and fuller treatises. Researchers relying on Bouvier alone will have the definition but not the legal stakes. The entry also does not acknowledge the jurisdictional divergence in American law on whether the continuous/apparent requirement for implied easements applies, is modified, or has been abolished.
No entry for this term appears in Black's Law Dictionary's early editions at the same level of analytical depth, though the continuous/discontinuous pairing appears in property treatises throughout the 19th and early 20th centuries. Modern legal dictionaries tend to subsume the classification under general easement entries, reflecting the reduced doctrinal weight the distinction carries in contemporary American practice.
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Jurisdictional Note
The continuous/discontinuous classification carries more doctrinal weight in civil law jurisdictions and in states whose property law was historically influenced by French or Spanish civil law (notably Louisiana). In most common law American states, the distinction survives primarily in the context of implied easements on severance, but courts vary significantly in whether they treat it as a hard requirement or merely one factor in the analysis.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia:
— Easements: Creation by Prescription (property_72) — for the interaction between the continuous/discontinuous classification and prescriptive acquisition requirements
— Easements: Transfer and Assignment of Easements (property_74) — for how easement classification affects transferability and scope
— Easements: Utility Easements and Conservation Easements (property_76) — for examples of continuous easements as contrast class
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