Barbour similarly averred in his affidavit that he and Jabara understood that the easement agreement permitted loading and unloading by the Crier Building's occupants. Defendants reference in their brief on appeal numerous cases supporting the inarguable proposition that a mutual, permissive use of another's land does not constitute adverse use that may ripen into a prescriptive easement. This case, however, involves additional evidence showing that loading and unloading was performed within the easement area pursuant to the mistaken belief that the 1971 express easement permitted such activity. In discussing the prescriptive use requirement, the Restatement of Property, Servitudes, 3d recognizes that use under an invalid easement may establish an easement by prescription. Restatement comment a describes the rationale underlying the rule set forth in 2.16.
Prescription operates in two distinct factual situations.
In the first, a person begins using property without the consent or authority of the owner and acquires a servitude if the use continues for the prescriptive period and the other requirements of 2.17 are met. In the second situation, people try to create a servitude but fail, initially because they do not fully articulate their intent or reduce their agreement to writing, or because they fail to comply with some other formal requirement imposed in the jurisdiction. If they proceed to act as though they have been successful in creating the servitude, and continue to do so for the prescriptive period, the servitude is created by prescription if the other requirements of 2.17 are met . In this second situation, prescription performs a title-curing function. Observance of the terms of the servitude for the prescriptive period substitutes for compliance with the required formality because it provides satisfactory proof of the existence and terms of the servitude and resolves any doubts as to the parties' intent that may have been created by their failure to comply with the formality.