In McBride v. Smith, (2018) 18 Cal.App.5^th 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.

In Scher v. Burke, 3 Cal.5th 136 (2017), the California Supreme Court held that the limitation on implied public dedications set forth in Civil Code section 1009(b) applies to both recreational and nonrecreational uses of non-coastal property.

The issue arose from a California Supreme Court case, Gion v. City of Santa Cruz, (1970) 2 Cal.3d 29, which held that private owners of certain coastal property who allowed the public to use the property for recreational purposes over a period of years thereby impliedly dedicated to the public the right to use the owner’s private property. The consequence of Gion was that fewer property owners allowed the public to use their property because of this new risk that the public would obtain a vested right to use the property in perpetuity.

The California Legislature then responded by adopting Civil Code section 1109.  Section 1109 provides that no use of private property by the public can ever ripen into a vested public right to use the property unless the owner makes an express written offer to dedicate the property, which is formally accepted by a public entity; EXCEPT that, for certain coastal property (e.g., property within 1,000 yards of the mean high tide line), the public can still perfect a vested right by implied dedication UNLESS the property owner posts or publishes a notice that reads, “Right to pass by permission and subject to control of owner.”

In Nellie Gail Ranch Owners Association v. McMullin, (2016) 4 Cal.App.5^th 982, the court of appeal affirmed a trial court ruling quieting title to a portion of planned development’s common area in favor of a homeowners association (HOA) in Laguna Hills.  In this case, a homeowner sought the HOA’s approval to construct several backyard improvements, including renovations to a pool, and new stairways, retaining walls and fences that dropped down the owner’s hillside towards HOA common area (Lot 274).  The HOA approved the pool renovations, but not the owner’s proposed re-grading, retaining walls and fences.  However, the owner’s constructed those improvements anyway, which had the effect of fencing in 6,000 SF of the common area, and the HOA sued.

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.

Court rejects property owner’s claim that he had an “Equitable Easement” to use an improved patio area on his neighbor’s property and remanded the case back to the trial court to adjudicate the plaintiff’s prescriptive easement claim.

In Shoen v. Zacarias, (2015) 237 Cal.App.4^th 16, the court of appeal overturned the trial court and rejected plaintiff’s claim that she had an “equitable easement” to use a patio area on her neighbor’s property that was only accessible from the plaintiff’s property.   The equitable easement doctrine evolved to give courts discretion to balance hardships in neighbor disputes over the use of property, and it can be used when a party cannot satisfy all the elements for an actual or prescriptive easement.  The court summarized the current rule as follows:

The case of Rye v. Tahoe Truckee Sierra Disposal Company, Inc., (3rd Dist. 2013) 2013 WL 6578784, –Cal.Rptr.3d–, involved a fairly common dispute about the extent of an easement.

A garbage company had an easement, created by reservation in a deed, to use a certain parcel for “parking, ingress, egress, utilities and storage” related to its business. The subject parcel contained a paved area and an unpaved area, and the garbage company used the paved area.

Introduction

Stormwater issues are not new to residents of hillside and mountain areas. Because winter storms often bring voluminous amounts of rain, sometimes for weeks on end, it is important to know how and where all that stormwater is flowing through your property in order to protect structures from damage and to protect the land from erosion. Sometimes stormwater needs to be collected, concentrated and discharged elsewhere through pipes or culverts, especially following new construction or the creation of impermeable surfaces (like roads and driveways).