Idaho Easements and Eminent Domain: Prescriptive Rights and Takings

In Idaho, a prescriptive easement requires clear and convincing proof of open, continuous and adverse use for the statutory period, and Idaho Code § 5-203 has set that period at 20 years since a 2006 amendment; an easement already acquired by five years of qualifying use before that amendment is governed by the former five-year period (Cook v. Van Orden, 2022). On the eminent domain side, Idaho Code § 7-701A, added in 2006, bars the use of eminent domain for a public use that is merely a pretext for transferring property to a private party, or for promoting economic development, subject to stated exceptions, including certain urban renewal and housing-area takings and uses the Idaho Constitution expressly provides for.

This page covers both halves of Idaho law: easements between private landowners first, then the government's power to take private property. For other states, see our guide to easement laws by state.

Information last verified on October 20, 2026. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: Idaho state law on private easements and on the condemnation of private property: the Idaho Constitution (art. I, § 14), Idaho Code Title 7, chapter 7 (eminent domain), Idaho Code §§ 5-203, 5-210 and 5-224, Title 9 and Title 55 conveyancing and recording provisions, Title 40, chapter 20 (relocation assistance), Title 42 ditch rights-of-way, and Idaho Supreme Court decisions. Out of scope: adverse possession of title (see our Idaho squatters rights page), HOA covenants, zoning and regulatory takings, federal condemnation (covered in our national eminent domain guide) and city or county ordinances.

What an Easement Is Under Idaho Law

An easement is a right to use part of someone else's land for a limited purpose, such as a driveway, a ditch or a utility line. Idaho has no single easement code. The rules come from scattered statutes and, above all, from Idaho Supreme Court decisions.

Idaho's statutes do treat an easement as an interest in land. Idaho Code § 7-702, which classifies "the estates and rights in lands subject to be taken for public use," lists a fee simple for certain permanent uses and "An easement, when taken for any other use."

Express Easements: Writing and Recording

An easement granted on purpose has to be in writing. Idaho's statute of frauds, Idaho Code § 9-503, provides that no estate or interest in real property, other than a lease of one year or less, "can be created, granted, assigned, surrendered, or declared, otherwise than by operation of law, or a conveyance or other instrument in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent thereunto authorized by writing."

Idaho Code § 55-601 provides that a conveyance may be made by a written instrument signed by the party disposing of the interest or an agent authorized in writing, and "The name of the grantee and his complete mailing address must appear on such instrument" (Idaho Code § 55-601).

Recording protects the easement against later buyers. Any instrument affecting the title to or possession of real property may be recorded (Idaho Code § 55-801), and a properly acknowledged and recorded conveyance is "constructive notice of the contents thereof to subsequent purchasers and mortgag(e)es" from the time it is filed with the county recorder (Idaho Code § 55-811). Our Idaho property records guide explains how to search recorded documents.

Implied Easements and Landlocked Property

Idaho courts recognize two kinds of implied easement, and they have different necessity tests.

Implied easement from prior use. In Thomas v. Madsen (2006), the Idaho Supreme Court held that the party claiming this easement must prove "(1) unity of title or ownership and a subsequent separation by grant of the dominant estate; (2) apparent continuous use long enough before separation of the dominant estate to show that the use was intended to be permanent; and (3) the easement must be reasonably necessary to the proper enjoyment of the dominant estate." The court added that "Strict necessity is not required," and that because only reasonable necessity is needed, "there is no requirement that the dominant estate be landlocked."

Easement by necessity. This is the stricter doctrine for land cut off by a split. In Bear Island Water Ass'n v. Brown (1994), the Idaho Supreme Court stated that the claimant must show "(1) unity of title and subsequent separation of the dominant and servient estates; (2) necessity of the easement at the time of severance; and (3) great present necessity for the easement."

In Easterling v. Clark (2025), the Idaho Supreme Court explained that the necessity at severance need only be reasonable necessity, but that great present necessity means "the claimed easement is the only access to the claimant's property," and that an easement by necessity "must not be granted if there is an alternate access, though it be expensive or inconvenient" (quoting Machado v. Ryan, 2012). In the same decision the court held "that Idaho Code section 5-224 is inapplicable to a claim of an easement by necessity," reasoning that the easement has existed since the time of severance, and departed from the four-year limitations rule it had applied in the same dispute in 2023.

Statutory routes. Idaho Code Title 7, chapter 7 (sections 7-701 through 7-721) contains no procedure for a landlocked owner to petition a county board or a court for a private road over a neighbor's land, as some states provide. Instead, a private owner can bring a condemnation case for a byroad: Idaho Code § 7-701(5) lists "Byroads, leading from highways to residences and farms," and the Idaho Supreme Court has decided such a case brought by a landowner (Eisenbarth v. Delp, 1950). The owner seeking the road must show the taking is necessary (Idaho Code § 7-704). The court held that "A condemnor need only show reasonable necessity," that "the burden was on appellant to justify the taking," and affirmed the denial of a road where the owner's existing way had not been shown to be inadequate, quoting another court that a way is not established as a necessity if the owner's outlet "affords him practical access thereto, or can be made so at a reasonable expense." The Idaho Court of Appeals has described these sections as "a private eminent domain power" and upheld orders that the private condemnor fence the easement and pay the neighbor's reasonable attorney fees (Erickson v. Amoth, 1987). The Idaho Constitution requires just compensation to be paid before property is taken (art. I, § 14).

A separate chapter lets the owner, locator or occupant of a mining claim acquire a right of way for ingress and egress across others' land "when necessary in working such mining claim" (Idaho Code § 47-901).

Ditches and canals. Idaho Code § 42-1102(1) provides that the owners or claimants it describes "are entitled to a right-of-way through the lands of others for a ditch, canal, lateral, drain, or conduit to convey water to the place of use for the purposes of irrigation or to provide drainage of irrigated land." If the landowner refuses to allow passage, the person seeking the right-of-way "may proceed as in the law of eminent domain" (Idaho Code § 42-1106).

Ditch maintenance, encroachments and relocation. The ditch right-of-way includes the right to enter the land to inspect, operate, clean, maintain and repair the ditch, in any season and without prior notice, and the landowner's permission is not required (Idaho Code § 42-1102(2)). No one may place roads, fences, gates, pipelines, structures, trees or other encroachments in the right-of-way without the ditch owner's or operator's written permission, which may not be unreasonably withheld, and an unpermitted encroachment that unreasonably or materially interferes with the right-of-way must be removed at the expense of whoever caused it, on request (§ 42-1102(4)-(5); § 42-1209 sets a parallel rule for irrigation districts and similar entities). A landowner may relocate or pipe a ditch on the landowner's own land, at the landowner's own expense and without impeding the water, but only with the ditch owner's or operator's prior written permission, which may not be unreasonably withheld, and the landowner is responsible for any increased operation and maintenance costs unless otherwise agreed in writing (Idaho Code § 42-1207).

Prescriptive Easements in Idaho

A prescriptive easement is a right to keep using another person's land, gained by long, adverse use rather than by a grant. In Spirit Lake Cabins, LLC v. Neeser (May 7, 2026), the Idaho Supreme Court restated the test from its 2022 decision in Cook v. Van Orden: a claimant must "prove by clear and convincing evidence use of the subject property that is (1) open and notorious, (2) continuous and uninterrupted, (3) adverse and under a claim of right, (4) with the actual or imputed knowledge of the owner of the servient tenement, (5) for the statutory period . . . ."

How long it takes. The period runs from Idaho Code § 5-203, which bars an action to recover real property unless the plaintiff or a predecessor "was seized or possessed of the property in question within twenty (20) years before the commencement of the action." In Spirit Lake Cabins, the court explained that "Before 2006, the statutory period for bringing a prescriptive easement claim was five years," and that § 5-203 "was amended in 2006 to increase the statutory period from five years to twenty years" (2006 Idaho Sess. Laws ch. 158). The current statute therefore sets 20 years. In Cook v. Van Orden (2022), the Idaho Supreme Court, quoting Capstar Radio Operating Co. v. Lawrence (2012), stated that "the twenty year time period does not apply to an easement by prescription acquired prior to the amendment," so claimants who say the right was established before 2006 "only need to show their use met the requirements for a period of five years."

Permission defeats the claim. In Spirit Lake Cabins, the court said it "recently reaffirmed in Cook II that adverse use cannot be established if that use is based on permission," and quoted Cook II (2023): "We did not eliminate the presumption of permissive use, nor did we eliminate the need for specific conduct to overcome the presumption of permission to establish use that is adverse." The presumption applied there because the land crossed was "wild, unimproved, and unenclosed." The claimant also sought the opposite presumption, of adverse use, arguing that how its use began was unknown; the court held that "a presumption of adverse use cannot apply" where the trial court had found the use began with permission (citing Hodgins v. Sales, 2003). The court also noted that, for wild and unimproved land, "the mere presence of a road or passageway over such land does not, by itself, constitute an improvement that alters its status."

Property taxes. The elements quoted in Spirit Lake Cabins do not mention paying taxes. The tax requirement in Idaho Code § 5-210 is written for adverse possession: it provides that "in no case shall adverse possession be considered established" unless the land "has been occupied and claimed for the period of twenty (20) years continuously" and the claimants "have paid all the taxes, state, county or municipal, which have been levied and assessed on such land according to law." That rule governs claims to ownership of the land itself, which our Idaho squatters rights and adverse possession page covers.

How to Prevent a Prescriptive Easement

None of the Idaho statutes discussed on this page sets up a posted-sign or recorded-notice procedure for blocking prescription, as some states do. Under the Idaho Supreme Court's decisions, permission is the dividing line: use based on permission cannot be adverse (Cook II, as quoted in Spirit Lake Cabins), and on wild, unimproved and unenclosed land the court presumes use is permissive until a claimant shows specific conduct overcoming that presumption.

How an Easement Ends

Nonuse alone does not end a granted easement. In Kolouch v. Kramer (1991), the Idaho Supreme Court stated: "The rule is well settled that mere non-use of an easement by grant does not effect an abandonment of the easement." Quoting its 1954 decision in Quinn v. Stone, the court added that mere nonuse, deferment or non-exercise of an easement by grant does not "result in the statute of limitations barring the easement."

Release in writing. Because Idaho Code § 9-503 requires a signed writing (or operation of law) to surrender an interest in real property, a voluntary release of an easement is made by a written instrument, which can then be recorded under Idaho Code § 55-801. Our Idaho quitclaim deed guide covers deed formalities.

Conservation easements. Idaho's Uniform Conservation Easement Act provides that, except as the chapter states otherwise, a conservation easement "may be created, conveyed, recorded, assigned, released, modified, terminated, or otherwise altered or affected in the same manner as other easements," and that, except as provided in § 55-2103(2), it "is unlimited in duration unless the instrument creating it otherwise provides" (Idaho Code § 55-2102(1), (3)).

Eminent Domain in Idaho

Eminent domain is the government's power to take private property for public use. For how other states handle it, and for federal condemnation, see our guide to eminent domain laws by state.

The Takings Clause

Article I, section 14 of the Idaho Constitution provides: "Private property may be taken for public use, but not until a just compensation, to be ascertained in the manner prescribed by law, shall be paid therefor." The same section declares a set of uses to be public uses, including reservoirs and rights of way for irrigation canals, ditches, flumes or pipes, drainage, the working of mines, and "any other use necessary to the complete development of the material resources of the state, or the preservation of the health of its inhabitants." Section 14 speaks only of property "taken"; it does not contain the "or damaged" language found in some other state constitutions. Relying on that wording, the Idaho Supreme Court has said an owner's property must be "taken" and not merely "damaged" before compensation is owed, and held that traffic, noise, odors and dust from a nearby county landfill were not a taking where there was no loss of access to or denial of any use of the property (Covington v. Jefferson County, 2002). The court noted there that a destroyed right of access constitutes a taking, and by statute a road authority's denial of the use of a "deeded access" easement is a taking of the access right for which just compensation is owed (Idaho Code § 40-102(1)).

Can Idaho Take Property for Private Development?

After Kelo v. City of New London (2005), Idaho added Idaho Code § 7-701A in 2006; the section was amended in 2015 and 2021. Under § 7-701A(2), eminent domain "shall not be used to acquire private property":

• "For any alleged public use that is merely a pretext for the transfer of the condemned property or any interest in that property to a private party"; or
• "For the purpose of promoting or effectuating economic development."

The statute then provides that "nothing in this subsection shall affect the exercise of eminent domain" under chapter 15 of title 70 and title 42 of the Idaho Code; under chapters 19, 20 or 29 of title 50, with a limit described below; or "For those public and private uses for which eminent domain is expressly provided in the constitution of the state of Idaho."

The limit on the title 50 exception is significant. No private property may be taken within the area of operation of a housing authority, an urban renewal area, a deteriorated or deteriorating area, or a competitively disadvantaged border community area "unless the specific property to be condemned is proven by clear and convincing evidence" to meet all three of these conditions: because of general dilapidation, compromised structural integrity or failed mechanical systems, it endangers life or property by fire or by other perils that pose an actual identifiable threat to building occupants; it contains specifically identifiable conditions posing an actual risk to human health, transmission of disease, juvenile delinquency or criminal content; and it presents an actual risk of harm to the public health, safety, morals or general welfare (Idaho Code § 7-701A(2)(b)(ii)).

Section 7-701A(2)(c) separately bars eminent domain "For trails, paths, greenways or other ways for walking, running, hiking, bicycling or equestrian use, unless adjacent to a highway, road or street." Two more rules matter in court: "The rationale for condemnation by the governmental entity proposing to condemn property shall be freely reviewable in the course of judicial proceedings" (§ 7-701A(5)), and an urban renewal board that includes one or more appointed commissioners "may act only in an advisory capacity to the local governing body with regard to eminent domain decisions" (§ 7-701A(3)).

At the federal level, the U.S. Supreme Court held in Kelo that the takings challenged there, made under a plan that "unquestionably serves a public purpose," satisfied the Fifth Amendment's public use requirement, and it added that "nothing in our opinion precludes any State from placing further restrictions on its exercise of the takings power." Idaho's § 7-701A is one of those state restrictions.

Pipelines, Power Lines and Other Authorized Uses

Idaho Code § 7-701 lists the uses for which eminent domain may be exercised. They include byroads leading from highways to residences and farms (§ 7-701(5)); pipelines for natural or manufactured gas or for crude petroleum or petroleum products, with related storage, terminal and pumping facilities (§ 7-701(9)); and electric distribution and transmission lines and electric generation facilities (§ 7-701(11)).

Before any property can be taken, Idaho Code § 7-704 requires that it appear that the use is authorized by law, that the taking is necessary to that use, and, for property already devoted to a public use, that the new use is a more necessary public use. For an electrical transmission line of more than 230 kilovolts built over private land actively devoted to agriculture, the statute also requires, among other things, that a public meeting have been held following ten days' notice. On private land actively devoted to agriculture, damages include the costs, if any, of farming around the structures of a transmission line over 230 kilovolts (Idaho Code § 7-711(6)).

What the Condemnor Must Do First

The condemnation complaint must attach an order of condemnation, resolution or other binding document that "sets forth and clearly identifies all property rights to be acquired," including access rights and permanent and temporary easements known or reasonably identifiable to the condemnor (Idaho Code § 7-707(6)). Where the owner lives in the county where the land lies, the complaint must state that the plaintiff sought "in good faith, to purchase the lands so sought to be taken, or settle with the owner for the damages which might result to his property from the taking thereof," and was unable to make any reasonable bargain or settlement (§ 7-707(7)).

The state or its agents in charge of a public use may enter land to examine, survey and map it, and that entry gives the owner no cause of action except for injuries resulting from negligence, wantonness or malice (Idaho Code § 7-705).

When a state or local government or a public utility begins negotiating to buy a parcel in fee simple, Idaho Code § 7-711A requires it to give the owner a rights form; if it does not, any resulting sale or contract is presumed not to have been voluntary. Among other things, the form states that:

• the owner may consult an appraiser of the owner's choosing at any time during the acquisition, "at the owner's cost and expense" (§ 7-711A(6));
• the condemning authority must deliver, on request, a copy of all appraisal reports it prepared on the owner's property, and once a condemnation complaint is filed, the civil rules control disclosure of appraisals (§ 7-711A(7)); and
• the condemning authority and its agents may not give the owner a deadline of less than 30 days to respond to the initial offer, and "A violation of the provisions of this subsection shall render any action pursuant to this chapter null and void" (§ 7-711A(10)).

Possession During the Case

A condemnor can ask the court for possession while the case is pending. Under Idaho Code § 7-721, the court sets a hearing not less than 10 or more than 20 days after the motion is filed. At the hearing the court first decides whether the plaintiff has the right of eminent domain, whether the use is authorized by law, whether the taking is necessary to that use, and whether the plaintiff sought in good faith to purchase the land. That order is a final order on those issues and may be appealed, but "no appeal therefrom shall stay further proceedings" (§ 7-721(2)). If the owner has not appeared but is not in default, the condemnor may proceed 20 days after the action is commenced by serving the motion and notice of the hearing in the same manner as a summons (§ 7-721(1)).

The condemnor then deposits the amount the court determines to be just compensation, and no interest accrues on the deposited amount after it is paid in (§ 7-721(9)). An owner who withdraws more than 80 percent of the deposit must sign a written undertaking, backed by two or more sureties approved by the court, to repay any amount by which the withdrawal exceeds the final award (§ 7-721(7)). Whatever the amount withdrawn, if the final award is lower, the owner must refund the difference to the clerk, and if the refund is not made within 30 days the court enters judgment against the owner for it (§ 7-721(8)). The court's interim compensation order, the deposit amount and any court-appointed appraiser's report are not admissible in further proceedings (§ 7-721(4)).

Idaho Code § 7-717 adds two more routes. At any time after the case is filed, on ten days' notice, the court may appoint three disinterested residents of the county as commissioners to assess the owner's damages. They must give written notice, within five days of their appointment, of a meeting held 5 to 10 days later within five miles of the property (unless another time or place is agreed), view the premises, and file a written report within ten days after their proceedings end unless the court allows more time. Once the commissioners' amount is paid to the owner, or deposited with the clerk if the owner refuses it, the condemnor may take possession and do the work needed for the easement or title until the litigation ends.

Separately, after trial and judgment or while an appeal is pending, the court may, on not less than ten days' notice, let the condemnor take or keep possession "during the conclusion of the litigation" once it pays into court the full judgment and any further sum the court requires. An owner who receives money paid into court on a judgment is treated as abandoning "all defenses interposed by him, excepting his claim for greater compensation" (§ 7-717).

How Just Compensation Is Calculated

Idaho Code § 7-711 directs the assessment of the value of the property and its improvements, and of each separate estate or interest in it. It sets a floor: "the minimum amount for damages shall be the greater of the assessed value for property tax purposes unless the court, jury or referee finds the property has been altered substantially, or the plaintiff's highest prelitigation appraisal."

• Highest and best use. The rights form states that the value of the property taken is determined based on its highest and best use (Idaho Code § 7-711A(4)).
• Valuation date. The right to compensation is deemed to accrue on the date of the summons, the property's actual value on that date is the measure of compensation, and the award draws lawful interest from that date. Improvements put on the property after service of the summons are not included (Idaho Code § 7-712).
• Partial takings. When only part of a parcel is taken, the court, jury or referee also assesses the damages to the remaining land caused by the severance and by building the project as proposed (§ 7-711(2)(a)); the rights form calls these "severance damages" and says they are generally measured by comparing the property's value before and after the taking (§ 7-711A(3)). It separately assesses how much the remainder will be "specially and directly benefited" by the project; benefits are deducted from the severance damages, and if they equal those damages the owner receives only the value of the part taken (§ 7-711(3)).
• Business damages. In a partial taking, § 7-711(2)(b) allows damages to a business "having more than five (5) years' standing" that the taking and the construction of the project may reasonably cause, subject to the conditions in that subsection. The business owner "must submit a written business damage claim to the plaintiff within ninety (90) days after service of the summons and complaint for condemnation" (§ 7-711(2)(i)). The claim must be sent by certified mail, return receipt requested; it must explain the nature, extent and amount of the damages, be prepared by the owner, a certified public accountant or a business damage expert, and come with business records that substantiate it; absent a good-faith justification or an agreed extension, "the court shall strike" a late claim (§ 7-711(2)(ii)-(iv)). Business damages are not awarded for a loss that relocation or reasonably prudent steps could prevent, or for temporary interruption due to construction, and an owner who has not given notice of a business damage claim before the condemnor files its possession motion cannot contest the condemnor's good faith on that point at the possession hearing (§ 7-711(2)(b), (2)(v)).

Title 7, chapter 7 contains no extra percentage for a home, no reimbursement of the owner's own appraisal costs, and no right to repurchase property the condemnor does not use.

Paying the Award

The condemnor must pay the assessed sum within 30 days after final judgment (Idaho Code § 7-714). If it does not pay or deposit the money, the owner may have execution as in civil cases, and if the money cannot be collected, the court "must set aside and annul the entire proceedings, and restore possession of the property to the defendant" (§ 7-715). When a copy of the order of condemnation is filed with the county recorder, the property vests in the condemnor for the purposes stated in the order (§ 7-716).

Deadlines to Watch

Chapter 7 itself sets two owner deadlines: the 90-day written claim for business damages under § 7-711(2)(i), sent by certified mail, or the claim is struck absent a good-faith justification or an agreed extension; and, if the final award is less than the amount the owner withdrew from the deposit, a refund of the difference within 30 days, or the court enters judgment against the owner for it (§ 7-721(8)). The condemnation summons is in the form of an ordinary civil summons (§ 7-708), and under Idaho Rule of Civil Procedure 12(a)(1)(A), unless another time is specified by rule or statute, a defendant must serve an answer within 21 days after being served with the summons and complaint. An appeal as a matter of right from a district court judgment or order, including the § 7-721(2) order on the right to take, generally must be filed within 42 days of the clerk's file stamp (Idaho Appellate Rule 14(a)); an appeal of the § 7-721(2) order does not stay the case. Separately, a condemnor may not give an owner less than 30 days to respond to its initial offer (§ 7-711A(10)).

Attorney Fees and Costs

Idaho Code § 7-718 provides: "Costs may be allowed or not, and, if allowed, may be apportioned between the parties on the same or adverse sides in the discretion of the court." In State ex rel. Winder v. Canyon Vista Family Ltd. Partnership (2010), the Idaho Supreme Court said that "Attorney fees are allowable in eminent domain proceedings, but are not mandatory as being within the definition of just compensation," and quoted Ada County Highway District v. Acarrequi (1983) that attorney fees and other expenses "are not recoverable in a condemnation proceeding except as authorized by statute." Acarrequi itself held that a fee award to the owner is "a matter for the trial court's guided discretion" and, among its factors, looks to whether the condemnor made a timely settlement offer of at least 90 percent of the ultimate verdict; an offer made "on the courthouse steps an hour prior to trial" is not timely. The Idaho Court of Appeals has applied that standard to private condemnors as well (Erickson v. Amoth, 1987).

The advice-of-rights notice in § 7-711A(8) tells owners that where the owner "is able to establish that just compensation exceeds the last amount timely offered by the condemning authority by ten percent (10%) or more, the condemning authority may be required to pay the owner's reasonable costs and attorney's fees," and that "The court will make the determination whether costs and fees will be awarded." Title 7, chapter 7 contains no provision that makes a fee award mandatory; a separate statute, Idaho Code § 40-2013, requires fees when a condemnor does not pay moving and relocation costs owed (see below).

Relocation Assistance

Idaho's relocation assistance statutes in Title 40, chapter 20 provide payments to displaced persons on the conditions each section sets, including:

• actual and reasonable moving expenses for a household, business or farm, actual direct losses of tangible personal property, and reasonable expenses in searching for a replacement business or farm, limited to a move within a reasonable distance (Idaho Code § 40-2004(1));
• instead of actual moving expenses, a household may elect a fixed moving allowance of up to $300 plus a $200 dislocation allowance (§ 40-2004(2)), and a business or farm may elect a fixed payment equal to its average annual net earnings, not less than $2,500 nor more than $10,000, which a business can receive only if it cannot be relocated without a substantial loss of patronage, among other conditions (§ 40-2004(3));
• for an owner who has owned and occupied a dwelling for at least 180 days before the first written offer, a payment of up to $15,000 toward a comparable replacement dwelling bought and occupied within one year, plus certain increased interest and closing costs (§ 40-2005(1)); and
• for other occupants of at least 90 days, up to $4,000 toward rent or a down payment, with a matching requirement above $2,000 for a down payment (§ 40-2005(2)).

A displaced person can seek review of a decision on eligibility or the amount of a payment under chapter 52, title 67, Idaho Code (§ 40-2010). If a condemnor does not pay moving and relocation costs owed as a result of a chapter 7 condemnation, "the owner of the property shall be awarded attorney's fees and costs incurred to recover the same" (§ 40-2013).

For acquisitions with federal financial assistance, federal law requires the state agency to give assurances that it will be guided, "to the greatest extent practicable under State law," by the federal land acquisition policies (42 U.S.C. § 4655(a)).

Inverse Condemnation

When government action takes property without a formal condemnation case, the owner may bring an inverse condemnation claim. In McCuskey v. Canyon County Commissioners (1996), the Idaho Supreme Court held that the limitations period for inverse condemnation is the four-year catch-all in Idaho Code § 5-224, and that the cause of action accrues "as of the time that the full extent of the plaintiff's loss of use and enjoyment of the property becomes apparent." Our Idaho statute of limitations guide covers other filing deadlines.

Idaho Easement and Eminent Domain Rules at a Glance

Related Idaho Pages

• Easement laws by state
• Eminent domain laws by state
• Idaho squatters rights and adverse possession laws
• Idaho property records: how to find out who owns a property
• Idaho quitclaim deed requirements
• Idaho statute of limitations

This article provides general legal information about Idaho easement and eminent domain law, not legal advice. Easement and condemnation cases turn on their facts and on deadlines set by statute and court rules. For advice about a specific property, contact a lawyer licensed in Idaho.

Last updated: October 20, 2026.

Frequently Asked Questions

How long does it take to get a prescriptive easement in Idaho?

Under the current version of Idaho Code § 5-203, 20 years of qualifying use. The period was five years before a 2006 amendment, and the Idaho Supreme Court has held that the 20-year period does not apply to a prescriptive easement already acquired before that amendment, so a claimant who says the right was established before 2006 needs to show five years of qualifying use (Cook v. Van Orden, 2022).

What are the requirements for a prescriptive easement in Idaho?

The Idaho Supreme Court requires clear and convincing proof of use that is open and notorious, continuous and uninterrupted, adverse and under a claim of right, with the owner's actual or imputed knowledge, for the statutory period (Spirit Lake Cabins v. Neeser, 2026, quoting Cook v. Van Orden, 2022). Use based on permission does not count.

Do you have to pay property taxes to get a prescriptive easement in Idaho?

The elements the Idaho Supreme Court quoted in Spirit Lake Cabins (2026) do not mention taxes. The 20-year occupation and tax-payment requirement in Idaho Code § 5-210 is written for adverse possession of the land itself.

What can I do if my land is landlocked in Idaho?

Idaho courts recognize an easement by necessity, which requires unity of title and later separation, necessity at severance and great present necessity (Bear Island Water Ass'n v. Brown, 1994). Great present necessity means the claimed easement is the only access, so an alternate access, even an expensive or inconvenient one, defeats the claim, and the four-year catch-all in Idaho Code § 5-224 does not apply to it (Easterling v. Clark, 2025). A landowner may also bring a condemnation case for a byroad under Idaho Code § 7-701(5), but must show reasonable necessity and pay just compensation (Eisenbarth v. Delp, 1950).

Does an easement end if it is not used in Idaho?

Not for an easement created by grant. The Idaho Supreme Court has stated that mere nonuse of an easement by grant does not abandon it and does not let the statute of limitations bar it (Kolouch v. Kramer, 1991).

Can Idaho take my property for a private developer?

Idaho Code § 7-701A bars eminent domain for a public use that is merely a pretext for transferring property to a private party, and for promoting economic development. The section has exceptions, including takings under title 42 and chapter 15 of title 70 and uses the Idaho Constitution expressly provides for, and allows takings in urban renewal and housing areas only for property proven by clear and convincing evidence to meet three hazard conditions.

Can Idaho use eminent domain for a pipeline or power line?

Idaho Code § 7-701 lists gas and petroleum pipelines and electric distribution and transmission lines among the uses for which eminent domain may be exercised. Any taking must be necessary to an authorized use (Idaho Code § 7-704), and a line over 230 kilovolts across agricultural land also requires a public meeting after ten days' notice, among other conditions. On such farmland, damages include the costs of farming around the line's structures (Idaho Code § 7-711(6)).

How is just compensation calculated in Idaho?

Compensation is the property's actual value on the date of the summons (Idaho Code § 7-712), with a floor equal to the greater of its property tax assessed value, unless it has been substantially altered, or the condemnor's highest prelitigation appraisal (Idaho Code § 7-711). In a partial taking, damages to the remaining land are added, less any special benefits to it (Idaho Code § 7-711(2)-(3)).

Does the government pay attorney fees in an Idaho eminent domain case?

Costs are in the court's discretion (Idaho Code § 7-718), and the Idaho Supreme Court has said attorney fees are allowable but not mandatory (Canyon Vista, 2010). The rights notice in Idaho Code § 7-711A(8) says the court may require the condemnor to pay reasonable costs and fees if just compensation exceeds its last timely offer by 10 percent or more. Separately, if a condemnor does not pay moving and relocation costs owed, the owner shall be awarded fees and costs to recover them (Idaho Code § 40-2013).

How long do you have to file an inverse condemnation claim in Idaho?

Four years under the catch-all in Idaho Code § 5-224, measured from when the full extent of the loss of use and enjoyment of the property becomes apparent (McCuskey v. Canyon County Commissioners, 1996).