• Land Use Attorney Capitola

Posts Tagged ‘demurrer’

Prescriptive Easement Allegations Indicating That The Plaintiff’s Use Of A Road For Primary Residential Use Was More Expansive Than The Restrictive, Emergency And Secondary Access Use Language Contained In Original Recorded Easement Grant Was Sufficiently “Adverse” To Survive A Demurrer.

In McBride v. Smith, (2018) 18 Cal.App.5th 1160, the court of appeal held that a prescriptive easement claim can survive a demurrer (that is, a which is a motion to dismiss brought early in the case), where allegations in the complaint suggest that the plaintiff’s easement use was contrary to language contained in the recorded easement grant.

In this case, Byron and Kalmia Smith purchased land in 1998 that was subject to a previously recorded easement. The easement was created in 1993, for the sole purpose of “emergency or secondary ingress and egress to a single family residence and not as primary access.”

In 2004, the McBride family acquired title to the land adjoining the Smiths’ property relating to the easement, and subsequently began using the easement.  Years later, in 2014, Kathleen McBride claimed that the Smiths “erected permanent fixtures…to impede and block her access to her property,” by way of the easement.  Consequently, McBride filed her complaint claiming that she had gained a prescriptive easement over the property by using the easement for primary access to her home, in an open, notorious, and adverse manner, on a daily basis, for a period of at least five consecutive years.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

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