How long does it take to create a prescriptive easement in North Dakota?

20 years of open, notorious, continuous and adverse use is the period generally applied in North Dakota, commonly cited to N.D. Cent. Code §§ 28-01-04, 47-05-12. The clock only runs while the use is visible and without the owner's permission; written permission restarts it.

Can someone take ownership of my land in North Dakota, not just a right to cross it?

A prescriptive easement only creates a right of use after 20 years. You keep title. Ownership claims run through North Dakota's separate adverse possession rules, which require possession of the strip itself rather than a shared use of it.

What has to be proven for an easement claim in North Dakota?

Twenty years of adverse use; ten years applies with color of title and payment of taxes. Easements not used for twenty years may be treated as abandoned.

Where are easements recorded in North Dakota?

Easements are recorded at the county level. For the North Dakota counties we cover that means Cass County Recorder. 1 of those counties publish a free public parcel viewer you can check before you order title work.

Does a North Dakota title commitment list every easement on the property?

Schedule B lists the recorded exceptions the title company found, which covers most utility, access and drainage easements. It will not show a prescriptive easement created by 20 years of use with nothing on paper, and it rarely tells you where on the lot the easement actually sits. That takes the recorded instrument plus a survey.

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North Dakota prescriptive easement law

Q: Which North Dakota law actually sets the clock?

N.D. Cent. Code § 47-06-03. In its own words: "A title to real property...vested in any person...in the actual open adverse and undisputed possession of the land under such title for a period of ten years and who...shall have paid all taxes and assessments legally levied thereon, shall be valid in law." We transcribed that from the official text on September 7, 2026.

Q: What does it cost to record an easement in North Dakota?

North Dakota records with the County Recorder. Set by statute at N.D. Cent. Code § 11-18-05, the county recorder's fee schedule.

N.D. Cent. Code §§ 28-01-04, 47-05-12

Prescriptive period

20 years

What actually decides a claim here

Twenty years of adverse use; ten years applies with color of title and payment of taxes.
Easements not used for twenty years may be treated as abandoned.

The rule that matters most

North Dakota treats a locked or maintained gate across the claimed way as strong evidence that the use was permissive rather than adverse, making gates a recurring, case-deciding fact in the state's prescriptive-easement disputes.

North Dakota requires twenty years of adverse use to establish a prescriptive easement under N.D. Cent. Code section 28-01-04, with a shorter ten-year path available where the claimant holds color of title and has paid taxes. North Dakota's farm and ranch geography means many disputes involve trails or roads crossing large sections of land, often with gates installed to control livestock rather than to assert or deny a right of access. North Dakota courts examine gates carefully: a gate that the claimant must open and close to pass through, especially one the owner controls or locks, tends to show the use was tolerated rather than a hostile assertion of an independent right.

What a claimant must prove in North Dakota

The claimant must prove adverse use for the full twenty years by evidence sufficient to overcome the presumption favoring the record owner, and North Dakota decisions treat gates, and the history of who installed and controlled them, as central evidence bearing on whether the use was adverse or merely permitted.

Adverse use for the statutory period

The claimant must show use inconsistent with the owner's title continuing for twenty years, or ten years where color of title and tax payment support a shorter path.

Open and visible use

The use must be apparent enough, such as a worn trail or maintained road, that the owner would be aware of it through reasonable observation of the property.

Uninterrupted use, considering gates and enclosures

Continuity must persist through the period, but North Dakota treats a gate the claimant must pass through, particularly one controlled or locked by the owner, as evidence weighing against a finding of adverse use.

A definite route across the servient tract

The claimed trail or road must be identifiable on the ground, since North Dakota courts have declined to recognize prescriptive rights over vaguely described areas of open land.

What can break the claim

Assuming that using a trail through a livestock gate for many years automatically proves an adverse claim; North Dakota case law treats gates as evidence cutting the other way.
Overlooking that a fence line dispute may sound in acquiescence to a boundary rather than prescription, a related but distinct North Dakota doctrine with its own proof requirements.
Failing to document who built and controlled a gate across the disputed trail, since that history can be decisive in North Dakota litigation.
Treating twenty years of unchallenged use as automatically sufficient without addressing whether the owner's notice to stop, if any was given, interrupted the claimed continuity.

Worked homeowner example

A ranch trail crossed through a shared cattle gate

Facts: A rancher has driven a pickup along a trail across a neighbor's section for over twenty years to reach an isolated pasture, passing through a cattle gate that both families use and that neither has ever locked.

How the rule applies: The twenty-year duration and visible, defined trail support several elements, but the presence of the shared, unlocked cattle gate is the kind of fact North Dakota courts scrutinize closely; if the gate was installed mainly to control livestock rather than to grant or restrict passage, that context matters, but the mere existence of a gate the rancher must open is evidence a court may weigh against adversity.

Practical next step: Gather evidence about who built the gate, why, and whether the neighbor ever attempted to restrict the rancher's passage, since these facts will shape whether the use looks adverse or tolerated under North Dakota's case law.

A published North Dakota example

Fischer v. Berger (2006 ND 48, 710 N.W.2d 886)

Adjoining landowners disputed a trail across the defendant's land that the plaintiffs had used since at least 1947 to move between two of their tracts, with gates installed on both sides of the property line where the trail crossed.

Outcome: The North Dakota Supreme Court affirmed dismissal of the prescriptive-easement claim, agreeing with the trial court that the gates and the surrounding history did not clearly establish that the plaintiffs' use was adverse rather than tolerated.

Why it matters: In North Dakota, the presence and history of gates across a disputed trail can be decisive evidence, and a claimant should be prepared to explain why a gated crossing still reflects an adverse claim of right.

Read the published decision

The North Dakota law in its own words

North Dakota writes the rule into its code at N.D. Cent. Code § 47-06-03. Read the operative sentence closely: the language a court applies is the statutory language, not a summary of it, and small phrases such as "under a claim of right" or "paid all the taxes" decide real cases.

“A title to real property...vested in any person...in the actual open adverse and undisputed possession of the land under such title for a period of ten years and who...shall have paid all taxes and assessments legally levied thereon, shall be valid in law.”
N.D. Cent. Code § 47-06-03 · checked 2026-09-07

Open N.D. Cent. Code § 47-06-03

Recording an easement in North Dakota

North Dakota records at the County Recorder. Set by statute at N.D. Cent. Code § 11-18-05, the county recorder's fee schedule. See the fee authority.

A written, agreed easement should be recorded with the county recorder in the county where the North Dakota land is located, using a legal description tied to the section, township, and range system common in the state's rural land records. Confirm the county recorder's current fee schedule, since North Dakota counties set their own recording charges within statutory limits.

Primary sources for this guide

N.D. Cent. Code § 28-01-04 - North Dakota twenty-year adverse-use period
N.D. Cent. Code § 11-18-05 - North Dakota county recorder duties and fees

Need the document itself? Follow the step-by-step records walkthrough to pull the recorded easement on your parcel from free county, state, and federal sources.

How North Dakota compares with the rest of the country

North Dakota runs a longer clock than most of the country: 20 years against a 15-year national median, so use that started recently is unlikely to have ripened into a prescriptive right yet. 21 states in total use a 20-year period. Nationally the periods run from 5 to 30 years, and 27 states are quicker than North Dakota.

Easements you actually see on North Dakota title work

Across the North Dakota counties we publish guides for, these are the exceptions that show up most often in Schedule B: Flood protection and levee easements, Legal drain and assessment district easements, Section-line access across farmland, Xcel Energy and cooperative electric easements. The recorded instrument controls the width and location. A plat note or a county parcel viewer is only a starting point.

County-by-county recording rules in North Dakota

Easements are recorded county by county, and the filing rules are set by the office that takes the document. Not by the state. Open a county to see who records there, how that office structures its fees, what makes a document get rejected, and where the free official index and parcel viewer live.

Look up North Dakota county records to jump straight to a county page with its recording rules, typical strip widths in feet, and the steps for disputing an easement.

Browse free North Dakota easement records and parcel GIS sources

North Dakota easement questions

Read the official North Dakota code Estimate the value impact Check a property in North Dakota

Common questions from homeowners

Related terms

prescriptive easement

easement by necessity

right of way

encroachment

General educational reference only. Prescription periods and their exceptions change, and several states set the period by case law rather than by statute. Read the linked official code and consult a licensed attorney in that state before relying on any of it.