• Land Use Attorney Capitola

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.

After granting several demurrers, eventually without leave to amend, the trial court found McBride’s allegations insufficient to establish that she used the easement in a manner that was inconsistent with the recorded grant, which is what the trial court held was required for McBride to satisfy the “adverse use” element.  Specifically, the court explained that McBride’s “primary use” allegation was too vague to establish a use that was adverse to the Smiths.  Similarly, the court also found that her claim of “daily” use was insufficient to show a wrongful/adverse rather than permissive use, as the recorded grant did not prohibit daily use if she had another primary accessway.

On appeal, the court found that these two core claims were sufficient to support McBride’s prescriptive easement cause of action based on the theory that her daily and primary use of the easement significantly expanded the limited use terms set forth in the 1993 recorded grant, which expressly limited use of the easement for the sole purpose of “emergency or secondary ingress and egress to a single family residency and not as primary access.”

The court also noted that, “[t]he existence of a grant [easement] does not preclude the acquisition of greater rights by prescription,” (citing Kerr Land & Timber Co. v. Emmerson, (1965) 233 Cal.App.2d 200, 228; and Dubin v. Robert Newhall Chesebrough Trust, (2002) 96 Cal.App.4th 465, 477).

The judgment was reversed and the case was remanded to the trial court, where McBride will have the opportunity to prove her prescription easement claim.


©2018 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 J. Dolinger
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