An article excerpt of applicable case law is as follows: "There is a growing trend in California courts to deny a prescriptive easement in situations involving boundary encroachments, even where the encroachment is one that easily could be the subject of a written easement. These cases derive from theXXXXXdecision in Raab v. Casper.
In Raab, the adjoining landowner, Casper, negligently built improvements, consisting of a roadway and utility lines, lawn, fences, shrubs, fruit trees and other landscaping, onto the land of his neighbor, Raab. The improvements effectively excluded Raab from making any use of the affected property. The trial court held that Casper was entitled to a prescriptive easement for the encroachments.
The appellate court reversed finding that the trial court's judgment, although "adroitly phrased," was "designed to exclude plaintiffs [Raab] from defendants' [Casper's] domestic establishment, employing the nomenclature of easements but designed to create the practical equivalent of an estate."
In effect, the court concluded that the doctrine of prescriptive easement could not be used as a substitute for what Casper was really seeking - fee title to Raab's property. This could be obtained, the court said, only by a showing of adverse possession.
While Raab involved a particularly egregious set of facts combined with a broadly written trial court decision, the courts have extended its rationale to less egregious, garden-variety encroachments. Thus in 1996, two cases - Mehdizadeh v. Mincer and Silacci v. Abramson - involving encroaching fences were decided.
In Silacci, where the landowner fenced in 1,600 square feet of his neighbor's property, the court found that an exclusive prescriptive easement that "as a practical matter completely prohibits the true owner from using his land, has no application to a simple backyard dispute like this one."
In Mehdizadeh, which involved a 10-foot encroachment, the appellate court reversed the trial court judgment granting a prescriptive easement for landscaping and recreation stating that it divested the defendants of nearly all rights that owners customarily have in residential property.
In both cases, the court took efforts to distinguish the holding in Otay Water District v. Beckwith, wherein a water company was granted an exclusive prescriptive easement for reservoir purposes.
In Otay, the court held that the exclusive right to use property as a reservoir was not tantamount to a fee estate because the water district's use of the property was limited to reservoir purposes. Mehdizadeh and Silacci distinguished Otay on public-policy grounds, emphasizing the public's right to keep drinking water safe from contamination.
Last year, two more cases were decided in which claims for prescriptive easements were denied.
In Kapner v. Meadowlark, Kapner built part of his driveway, gate and perimeter fence onto a commonly owned roadway parcel, although not onto the roadway itself. The court found that because Kapner enclosed and possessed the land in question, he was not entitled to a prescriptive easement.
In Harrison v. Welch, Welch built a woodshed and landscaping consisting of planter boxes, trees and irrigation that encroached partially on the Harrisons' property. The court held that an exclusive prescriptive easement, "which as a practical matter completely prohibits the true owner from using his land," will not be granted in a case involving a typical residential boundary encroachment.
The interesting fact in Harrison was that a fence apparently did not enclose the landscaping improvements, and, thus, the true owner was not physically denied access to the easement area. Nonetheless, the court upheld the trial court's judgment that the installation of trees, railroad tie-planter boxes and an irrigation system completely prohibited the Harrisons from using that part of their land.
Recent cases have taken the Raab decision too far by focusing too much on exclusivity and failing to recognize that an easement to use property in a manner that limits or excludes the true owner is not unusual and is not the same as ownership." Reference Reference
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An easement is a legal right to use the property of another, for the purposes specified in the easement document. To determine what that is, you would have to get a copy of the deed which either granted or reserved the easement, in order to examine its language.
However, because the easement hasn't been used for a certain number of years, the owner might have been able to bring a suit to quiet title to his property based upon an abandonment of the easement. However, he would have the burden of proving that you or the previous owner ceased using the easement with the INTENTION of abandoning its use in the future. This is usually a very difficult burden to meet.
Clearly, the best time to challenge his encroachment onto the easement would have been at the time that the wall was built around the property. The question at hand is whether the owner can then reclaim a portion of the easement by prescription.
The legal test to acquire a prescriptive easement of another owner is that the use must be open, not secret, notorious, clearly observable, hostile, without the landowner's consent and continuous without interruption for 5 years in California. If the hostile user meets all the requirements, after the required number of years, a permanent prescriptive easement results for the strip of land.
If your neighbor were to perfect a legal prescriptive easement, the he would have to bring a quiet title lawsuit against you as the the easement deed owner and prove all the open, notorious, hostile and continuous use requirements.
The fact that he is the owner of the easement land does not preclude the easement owner from their legal rights to use the land. However, my personal opinion is that he has met the requirements for a prescriptive easement, which would effectively reduce the width of the original easement which was granted.
My best advice would be to consult with a local attorney who could examine the easement document, and give you specific legal advice tailored to your particular circumstances.
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