Easement by necessity vs. easement by prescription - which makes more sense?

The “no choice” part of necessity is more specific than it sounds. It usually depends on whether the parcel became landlocked when a commonly owned tract was split, so the access situation at that severance date can matter a lot. A later sale or a merely inconvenient route may not be enough.

Prescription is a different proof problem: the use generally has to be open, continuous, and adverse for the statutory period, and the details vary by jurisdiction. Long use alone doesn’t necessarily establish the required character, especially if the owner gave permission. So neither is automatically fairer. Necessity may fit better where the access problem was created by the division, while prescription may fit an established route whose legal status was simply never documented.

The “neither is automatically fairer” point also depends on what happens later. In many jurisdictions, a necessity easement can end if the parcel gains legally adequate access, while a prescriptive easement generally doesn’t disappear just because access later improves. That makes the long-term consequences different, not just the proof required to establish each one. The details can vary by jurisdiction, though.

If we’re judging fairness by the burden on the property being crossed, the route’s scope matters as much as how the right arose. Would a limited path that provides the access actually needed feel fairer than a broader right based on the route people have historically used? The location and permitted use can make a big difference to the impact on that land.