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HOW TO
COUNTER AN EXISTING PRESCRIPTIVE EASEMENT
INTRODUCTION
Oh
no! I think someone has taken my land by a prescriptive easement!
In the
article on
Prescriptive Easements,
the basics of how an easement by prescription is acquired is outlined,
as well as some effective ways to prevent an easement by prescription
from arising.
But
what happens if someone has been using your land (or land you are
seeking to acquire) in an open, notorious, continuous manner for
five years or more? In other words, what happens if you think
someone has obtained an easement by prescription? Can you get it back,
and if so, how?
PREVENTING PRESCRIPTIVE EASEMENTS
As
stated in the article on
Prescriptive
Easements,
California Civil Code §1008 is a powerful tool for preventing easement
by prescription from ever coming into being. That law states that,
No use by any person
or persons, no matter how long continued, of any land, shall ever ripen
into an easement by prescription, if the owner of such property posts at
each entrance to the property or at intervals of not more than 200 feet
along the boundary a sign reading substantially as follows: "Right to
pass by permission, and subject to control, of owner: Section 1008,
Civil Code."
Do not
be misled, however. Despite what might seem to be the clear the
language of this code section, if someone has already done all of the
acts necessary to acquire an easement by prescription on your land, your
later posting will not act to retrieve the land. It will be too
late.
This
was made clear fairly recently by the California Court of Appeals, which
held that if all of the elements to obtain an easement by prescription
have been met, the later posting of the land will not extinguish the
easement. Interestingly, the court also found that posting the land
cannot be done by just anyone. The land must be posted by the owner of
the land. The posting of the land alone was not sufficient, if the
posting was done by a third party who was not the owner. So if you are
hoping to perfect your own Prescriptive Easement on someone else’s land,
or thinking of buying land that may be subject to such an easement, your
posting would have no effect. See, Aaron v. Dunham (2006) 137
Cal. App. 4th 1244.
THE
STATUTORY WAY
In California,
creation of an easement by prescription is a matter of statute.
Therefore, the termination of an easement is a matter of statue as well,
and California Civil Code §811, specifies four ways in which an
easement (referred to as a “servitude” in the code) may be extinguished:
The first way
is, “By the vesting of the right to the servitude and the right to the
servient tenement in the same person.” Civil Code § 811(1). For
easements that “run with the land,” this means that the same person owns
both the land that is burdened, and the land that is benefited by the
easement. For personal easements, this means that the person who
benefited from the easement buys the land burdened by the easement.
The second way
is, “By the destruction of the servient tenement.” Civil Code § 811(2).
This is literal. For example, in the situation where there was an access
easement across a parcel of property, and where the city lowered the
land in such a manner as to render the right of way of no practical
utility, the easement was extinguished. Fletcher v. Stapleton (1932, Cal
App) 123 Cal App 133. For another example, a grant of right to use hall
or stairway of building confers no interest in soil which will survive
destruction of building without fault of owner thereof. Rothschild v.
Wolf (1942) 20 Cal 2d 17. In other words, easement in building for
particular purpose carries with it no interest in land, and when
building is destroyed easement ceases. Walner v. Turlock (1964, Cal App
5th Dist) 230 Cal App 2d 399, 41 Cal Rptr 29, 1964 Cal App LEXIS 884.
The third way
is, “By the performance of any act upon either tenement, by the owner of
the servitude, or with his assent, which is incompatible with its nature
or exercise.” Civil Code § 811(3). The key here is that the act must
be done by the owner of the easement, or with his or her agreement, and
may not be done unilaterally by the owner of the land burdened by the
easement. As the courts have explained, the “incompatible act” must be a
permanent interference or an act of such a nature that, thereafter, the
easement cannot be used without severely burdening the servient
tenement. Buechner v. Jonas (1964) 228 Cal. App. 2d 127, 132, 29 Cal.
Rptr. 298. That is, the incompatible act must result in a physical
change that permanently and materially prevents the dominant owner from
using the easement or makes the dominant owner's use of the easement
severely burdensome on the servient tenement. Reichardt v. Hoffman
(1997) 52 Cal. App. 4th 754, 767-769, 60 Cal. Rptr. 2d 770. This means,
for example, permanently changing the land, e.g. building a substantial
wall, building, or other construction which blocks the land or makes it
permanently incompatible with the easement.
Finally, the fourth
way is,
“when the servitude was acquired by enjoyment, by disuse thereof by the
owner of the servitude for the period prescribed for acquiring title by
enjoyment.” Civil Code § 811(4). In other words, if the land was
acquired by prescription, if it is abandoned for five years, then the
easement will cease.
CAN I USE SELF-HELP
TO DESTROY AN EASEMENT?
Can you use “self
help” to destroy an easement by prescription if it has already come into
being? Can you take action, such as physically blocking access to the
land (e.g. fencing)? Will this act to extinguish the easement?
You may take such
self-help actions, but until five years has passed, you run the risk
that the easement owner will take you to court to enforce their easement
right. In essence, such self help is tantamount to re-taking the land
by adverse possession (by easement by prescription), and you have to
take the land back in the same manner as it was taken from you, which is
in an open, notorious, continuous manner for five years or
more.
"It is
settled law that an easement, whether acquired through a grant, adverse
use, or as an abutter's right, may be extinguished by the owner of the
servient[i]
tenement by acts adverse to the exercise of the easement for the period
required to give title to the land by adverse possession." Popovich
v. O'Neal, 219 Cal. App. 2d 553, 556 (Cal. App. 5th Dist. 1963).
See also, Glatts v. Henson, 31 Cal.2d 368, 370 [188 P.2d 745];
Rest., Property, § 506, p. 3090; 17 Cal.Jur.2d § 40, p. 149.).
"Generally, a prescriptive easement once acquired can be extinguished by
actions of the servient tenement which satisfy the same elements
required for the creation of the easement." Zimmer v. Dykstra,
39 Cal. App. 3d 422, 435 (Cal. App. 2d Dist. 1974).
USE OF
LAND SUBJECT TO PRESCRIPTIVE EASEMENT
Now
there is an easement on your land. Can you still use your own land? Yes,
of course you can. Your use, however, may be limited. The owner of the
servient tenement may use the burdened land in any way which does not
"interfere unreasonably" with the easement. Camp Meeker Water System,
Inc. v. Public Utilities Com. (1990) 51 Cal. 3d 845, 867. In other
words, you cannot use your land in a way which would prevent the
easement holder from using their easement. As the court has stated,
"Extinguishment of an easement is an extreme and powerful remedy which
is utilized only when use of the easement has been rendered essentially
impossible. The California Supreme Court construed this statute more
than a century ago as authorizing extinguishment of an easement only
where the easement owner performs or authorizes an act which
permanently prevents use of the easement." Reichardt v. Hoffman,
52 Cal. App. 4th 754, 767 (Cal. App. 6th Dist. 1997)(emphasis added).
CONCLUSION
The
stark reality is that if an easement by prescription is claimed, and if
the court agrees, there is no easy, or quick, way to get the property
back. It has been said that eternal vigilance is the price of liberty,
and this applies equally well with regard to the liberty and freedom of
your property. If you fail to stop the trespasser for five years, you
will lose a piece of your land.
[i]
When
discussing easements that “run with the land” there are two
types of property, the servient tenement or estate, and the
dominant tenement or estate. The dominant estate has the
benefit of the easement over the servient estate.
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