Law Review: Prescriptive easement law 101A

A common occurrence in my real estate practice involves one person using another’s property, whether it be a path, a driveway, for parking or even a fence over the true property line.

All of you jailhouse lawyers know or think you know that if one person uses another’s property for a few years, they can go to court and claim the legal right to continue doing so even if the owner objects. That is only partially correct.


As Sergeant Joe Friday use to say on the television show Dragnet, “Just the facts ma’am.” Here are the basic facts in our case today, summarized from the actual complicated scenario.

For at least 50 years, two adjacent properties, we will call them “A” and “B,” were owned by a single owner. For close to 50 years property A used portions of property B for access, parking, garbage removal and a garden. Ultimately a new owner of B whose property was being used, sued the owner of A to stop the use, claiming A was trespassing. The owner of A countersued claiming he/she had used B for almost 50 years and therefore had a prescriptive easement to continue doing so as a legal right.


To establish a prescriptive easement, the party claiming use of another’s property must show use of the property has been “open, notorious, continuous, and adverse for an uninterrupted period of five years.” That essentially means that the use must be obvious (visible), continued for at least five years and the use was not with the permission or consent of the owner whose property is being used. In our case, Husain v. California Pacific Bank, the use for access, parking, garbage storage, and a garden was visible and continuous for well over five years. The legal question is whether the 50 years of use was with the consent of B. If so, no prescriptive easement is acquired.

In other words, was the acquiessence of almost 50 years of B hostile or was it neighborly accommodation, thus permissive. B did not object to the use, but on the other hand B did not expressly grant permission for the four different uses.


The trial court ruled for property owner A, the owner using B, saying B sat on his rights, did not challenge the use of his property, thus a “non-exclusive prescriptive easement” was legally acquired for the driveway, parking spaces, garbage area and garden. The First Appellate District Court of Appeal upheld the ruling citing the trial court’s broad equitable powers. A may legally use B’s property.


Given 50 years of use, the trial court and Court of Appeal wanted to maintain the status quo and thus went out of their way to grant a prescriptive easement. The long standing uses may continue. I get that.

But what was not discussed was that California cases are clear that a prescriptive easement is the right to use another’s property and that use may not be exclusive because exclusive use essentially amounts to ownership. One may not acquire an exclusive a prescriptive easement – the use must be shared with the property owner. Use of a driveway, parking spaces, a garbage area and garden are by definition exclusive – to the exclusion of the owner of B. This case is inconsistent with one of the leading cases in this area Harrison v. Welsh and its prodigy.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. Jim’s practice areas include: real estate, development, construction, business, HOAs, contracts, personal injury, accidents, mediation and other transactional matters. He may be reached at or

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