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 the*****decision 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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