An easement may be acquired by prescription if one engages in visible ("open and notorious") use of another's property in a continuous manner for the period of the statute of limitations. Most state presume such uses are permissive although a growing minority of states presume permission. A crucial requirement is that the use be visible to the servient estate owner. How then could underground utility lines (which are obviously hidden) be sufficiently visible to be acquired by prescription?
The Massachusetts Land Court ruled that an owner can acquire an easement by prescription for underground utility lines if physical clues on the land would put a reasonable owner on notice that the lines exist. Dunning v. Larsen, 2015 WL 5920263 (Mass. Land Ct. 2015). In this case the dominant estate owner also was using a road over the servient estate and the utility lines were underneath that road. While the lines themselves were invisible, the house served by the lines obviously had electricity and phone service. The servient estate owner could observe lights on in the building located on the dominant estate and had telephoned the dominant estate owner on a land line. Moreover, there was a utility pole located next to the driveway. These facts were sufficient to put the servient estate owner on notice of the existence of the utility lines.