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).
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.