The court may create an easement on equitable grounds even though the user is not entitled to an easement on one of the more traditional grounds. The judge balances the rights of the various parties, and decides whether there should be an injunction to prohibit the trespass, or alternatively to convert the trespass into a right, and order compensation for the victim.
This type of easement right may be created when:
- a party has used and improved an easement for a long period of time with an innocent belief that he or she had a right to use the easement,
- there would be irreparable harm if the party could not continue to use the easement, and
- the servient tenement would suffer little harm from the further use of the easement.
If all three tests are passed, the court can exercise its equitable jurisdiction and issue a permanent injunction against interference with future use, and compensate the owner of the property over which the easement is created.
This differs from a prescriptive easement in several ways.
First, the party gaining the easement must have acted innocently - they could not have knowledge that they were trespassing.
Second, the equitable easement may be exclusive. A prescriptive easement may not be exclusive, which is more like an ownership right., It is not an ownership right, but a right to a specific use of another's property. as such rights require paying taxes and establishing title by adverse possession.
Lastly, the judge may require the person acquiring the easement to pay reasonable compensation to the underlying landowner.