How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask NOT LEGAL ADVICE! Your Own Question
Category: Real Estate Law
Satisfied Customers: 2201
Experience:  Information provided is for entertainment puposes only and is NOT legal advice.
Type Your Real Estate Law Question Here...
NOT LEGAL ADVICE! is online now
A new question is answered every 9 seconds

CALIFORNIA EASEMENT LAW I have an 18 foot wide easement over

This answer was rated:

I have an 18 foot wide easement over a private road that crosses two neighboring prperties and gets me to a public road. In 1989 before i bought my property one of those two neighbors built a stone wall out into the easement and narrowed the road to 13 feet. The stone wall surrounds his enlarged backyard and he has exclusive use of the property that he gained by the encroachment. He claims he has prescriptively gained the right to leave the wall and landscaping intact. Until now i thought that the encroaching neighbor had long ago gained the right to leave his wall where it is and had thus effectively narrowed my access. But i have learned that california courts in recent years have made rulings that have changed the nature of prescriptive easements and that
i may be able to get the wall removed. What are my chances and which new caselaw makes possible a successful challenge?
Well you would probaly be able to get the wall removed. You can use the Tariffs from PG&E, SCE, So-CAL Water, Cal-Trans, SBC etc. You can get the tariffs (rule approved by the California Public Utilities Commission by going to their web page at:

You see once youve had an easment established, and a party encroaches on this, they must have a court order to do so. No order, then they must take the wall down.
When you go to the CPUC site go to the Consumer Affair link and loopup company tariffs, you will be able to use these tariffs on easments for your case.
Customer: replied 10 years ago.
Relist: I prefer a second opinion.
i need recent case law that has changed the nature of acquiring prescriptive easements.

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

Let me know if you would like additional information.

If I have answered your question, please click "ACCEPT."
POSITIVE FEEDBACK is appreciated and reciprocated.

Thank you.

Disclaimer: Any information given by me is for informational use only and is not legal advice. This is general information and is not intended to be specifically tailored to an individual. I strive to provide quality information, but I make no claims, promises or guarantees about the accuracy, completeness, or adequacy of the information contained in or linked herein and its associated sites. Persons accessing this response are encouraged to seek legal counsel in their jurisdiction for accurate guidance regarding their individual circumstances.

Category: Real Estate Law
Satisfied Customers: 2201
Experience: Information provided is for entertainment puposes only and is NOT legal advice.
NOT LEGAL ADVICE! and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 10 years ago.
to Jen:

in your opinion (and i understand that it is not legal advice) does the fact that   the land (over which i have an 18 foot easement which was effectively narrowed by an encroachment) actually belongs to the encroaching owner make a difference? it seems to distinguish my situation from the cases you cited. those seem to involve encroachments on the land of others (not easements) that created an exclusive use and therefore were more like adverse possession.
i don't know that there is any case like mine that has been decided yet. do you?

Mr. Blair,

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.