Law Review: Prescriptive easement law clarified

Jim Porter
Law Review

Most of you have heard of a prescriptive easement. This interesting legal theory often comes into play when one property owner inadvertently builds over the property line of a neighbor or when a driveway or path has been used over someone else’s property. Can the encroachment or use of the path or driveway ever become a permanent right of the user?

Today’s column is sort of boring, but this is an area of the law I find interesting. After today’s column, you will be able to impress friends at your next cocktail party spouting off about the ins and outs of prescriptive easements.


Do you remember Joe Friday in the TV program “Dragnet?” He used to always say “just the facts ma’am.”

The facts in our case are quite confusing, but boiled down: property owner McBride owned a home and was entitled to use a recorded access easement over her neighbor’s land to her property. The easement was for “emergency or secondary ingress and egress.” i.e. not for primary or daily access to McBride’s home.


McBride drove over the access easement road every day. She later claimed she was entitled to a prescriptive easement and therefore had a permanent right to use the secondary access easement, because for years she had been driving on a daily basis to her home contrary to the secondary access easement she had. These facts don’t make sense unless you know the elements of a prescriptive easement.


To establish a prescriptive easement, the person claiming the easement must show use of someone else’s property, which has been “open, notorious, continuous and adverse for an uninterrupted period of five years.”

“Open” means more or less visible. “Adverse” is essentially synonymous with “hostile.” A claimant’s use is adverse to the owner if the use is made without any express or implied recognition of the owner’s rights. In other words, an easement claimant’s use is adverse to the owner if it is in defiance of the owner’s property rights, and not made with the owner’s consent or approval.

So, for example, if someone has driven over their neighbor’s property on a road for at least five years and essentially acted as if they have the legal right to do so, they may be able to go to court and be awarded a permanent prescriptive easement right to continue crossing the property on that road. The owner would defend by showing they consented so the use was not hostile.


The tricky and interesting (if you are a boring lawyer) issue in this case was that McBride had a recorded easement to cross her neighbor’s land. The general rule is if one has a recorded easement to use another’s land, you can’t acquire a prescriptive easement because you already have the right to use the easement. This column is going downhill fast.

However, the easement McBride enjoyed over her neighbor’s property was for “emergency or secondary ingress and egress.” Not for daily use.


McBride asked the court to award her a prescriptive easement for daily access arguing her “open, notorious, continuous and adverse” daily use for over five years met the criteria.

The trial court disagreed with McBride. The Court of Appeal reversed, ruling that a party may expand a recorded easement by using the legal doctrine of a prescriptive easement.

If any reader makes it to the end of this column, stop by the office and I will give you a dollar for your troubles — you deserve it.

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

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