CASE UPDATE: Court Holds That Public Recreational Use Exception Did Not Apply As A Defense To A Private Prescriptive Easement.

In Pulido v. Pereira, (2015) 234 Cal.App.4^th 1246, the court of appeal upheld the trial court’s determination that a prescriptive easement existed and that the public recreation exception (Civ. Code § 1009), did not apply.  Pulido purchased some undeveloped property in Calaveras County.  For six years, the Pulido always accessed the property via a road called Quartz Hill Drive (which was a private road owned by Pereira), by disconnecting a chain strung between two posts at the entrance to the road.  One day, Pereira installed a gate and lock across the road entrance and told Pulido that he could no longer use the road.  Unfortunately, locking the gate affected several other neighbors who also used the road to access their properties, and the neighbors sued.  The trial court held that the neighbors had a prescriptive easement, satisfying the elements that the use of the property was open, notorious, continuous and adverse for an uninterrupted period of five years.

The published part of the opinion addressed the trial court’s holding that Civil Code section 1009 did not apply.  Section 1009 provides an affirmative defense to a prescriptive easement claim when members of the public use, enjoy or pass over the subject property for public recreational purposes.  The defendant, Pereira, argued that Section 1009 applied because Pulido used the road to access property that Pulido used for the recreational purposes of walking around and shooting targets.  The court of appeal held that Section 1009 did not apply because there was no issue of a public easement, that is, this was a private easement issue between two private landowners, and because the recreational use did not take place on the property that was subject to the easement, that is, Quartz Hill Road.

©2015 Miles J Dolinger. This article is not intended to and does not constitute legal advice or a solicitation for the formation of an attorney-client relationship.

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Miles Dolinger

Miles Dolinger epresents individual, business and public agency clients in a wide range of real estate, land use, and public law matters (transactional and litigation). His office is currently location in Capitola, CA and serves clients in Santa Cruz, Monterey, San Benito and Santa Clara Counties.

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