CACI 4901 Prescriptive Easement

California Civil Jury Instructions CACI

4901 Prescriptive Easement

[Name of plaintiff] claims that [he/she/nonbinary pronoun] is entitled to a nonexclusive use of [name of defendant]’s property for the purpose of [describe use, e.g., reaching the access road]. This right is called a prescriptive easement. In order to establish a prescriptive easement, [name of plaintiff] must prove that for a period of five years all of the following were true:

1.That [name of plaintiff] has been using [name of defendant]’s property for the purpose of [e.g., reaching the access road];

2.That [name of plaintiff]’s use of the property was continuous and uninterrupted;

3.That [name of plaintiff]’s use of [name of defendant]’s property was open and easily observable, or was under circumstances that would give reasonable notice to [name of defendant]; and

4.That [name of plaintiff] did not have [name of defendant]’s permission to use the land.

Directions for Use

Use this instruction for a claim that the plaintiff has obtained a prescriptive easement to use the defendant’s property. A claimant for a prescriptive easement is entitled to a jury trial. (Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124 [21 Cal.Rptr.2d 127].)

If the case involves periods of prescriptive use by successive users (i.e., “tacking”), modify each element to account for the prior use by others. (Windsor Pacific LLC v. Samwood Co., Inc. (2013) 213 Cal.App.4th 263, 270 [152 Cal.Rptr.3d 518], disapproved on other grounds in Mountain Air Enterprises, LLC v. Sundowner Towers, LLC (2017) 3 Cal.5th 744, 756 fn. 3 [220 Cal.Rptr.3d 650, 398 P.3d 556].)

There is a split of authority over the standard of proof for a prescriptive easement. (Compare Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057, 1074 [214 Cal.Rptr.3d 193] [preponderance of evidence] with Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310 [79 Cal.Rptr.3d 902] [clear and convincing evidence].)

Sources and Authority

“ ‘The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years. [Citations.] Whether the elements of prescription are established is a question of fact for the trial court [citation], and the findings of the court will not be disturbed where there is substantial evidence to support them.’ ‘[A]n essential element necessary to the establishment of a prescriptive easement is visible, open and notorious use sufficient to impart actual or constructive notice of the use to the owner of the servient tenement. [Citation.]’ ” (McLear-Gary v. Scott (2018) 25 Cal.App.5th 145, 159 [235 Cal.Rptr.3d 443], internal citation omitted.)

“Periods of prescriptive use by successive owners of the dominant estate can be ‘tacked’ together if the first three elements are satisfied.” (Windsor Pacific LLC, supra, 213 Cal.App.4th at p. 270.)

“[The] burden of proof as to each and all of the requisite elements to create a prescriptive easement is upon the one asserting the claim. [Citations.] [Para. ] … [The] existence or nonexistence of each of the requisite elements to create a prescriptive easement is a question of fact for the court or jury.” (Twin Peaks Land Co. v. Briggs (1982) 130 Cal.App.3d 587, 593 [181 Cal.Rptr. 25].)

“[A] party seeking to establish a prescriptive easement has the burden of proof by clear and convincing evidence. The higher standard of proof demonstrates there is no policy favoring the establishment of prescriptive easements.” (Grant, supra, 164 Cal.App.4th at p. 1310, internal citation omitted.)

“[Plaintiff] correctly contends that the burden of proof of a prescriptive easement or prescriptive termination of an easement is not clear and convincing evidence … .” (Vieira Enterprises, Inc., supra, 8 Cal.App.5th at p. 1064.)

“Whether the use is hostile or is merely a matter of neighborly accommodation, however, is a question of fact to be determined in light of the surrounding circumstances and the relationship between the parties.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 572 [199 Cal.Rptr. 773, 676 P.2d 584].)

“ ‘The term “adverse” in this context is essentially synonymous with “hostile” and “ ‘under claim of right.’ ” [Citations.] A claimant need not believe that his or her use is legally justified or expressly claim a right of use for the use to be adverse. [Citations.] Instead, a claimant’s use is adverse to the owner if the use is made without any express or implied recognition of the owner’s property rights. [Citations.] In other words, a claimant’s use is adverse to the owner if it is wrongful and in defiance of the owner’s property rights. [Citation.]’ ” (McBride v. Smith (2018) 18 Cal.App.5th 1160, 1181 [227 Cal.Rptr.3d 390].)

“Claim of right does not require a belief or claim that the use is legally justified. It simply means that the property was used without permission of the owner of the land. As the American Law of Property states in the context of adverse possession: ‘In most of the cases asserting [the requirement of a claim of right], it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.’ One text proposes that because the phrase ‘ “claim of right” ’ has caused so much trouble by suggesting the need for an intent or state of mind, it would be better if the phrase and the notions it has spawned were forgotten.” (Felgenhauer v. Soni (2004) 121 Cal.App.4th 445, 450 [17 Cal.Rptr.3d 135], internal citations omitted.)

“Prescription cannot be gained if the use is permissive.” (Ranch at the Falls LLC v. O’Neal (2019) 38 Cal.App.5th 155, 182 [250 Cal.Rptr.3d 585], citation omitted.)

“Use with the owner’s permission, however, is not adverse to the owner. [Citations.] To be adverse to the owner a claimant’s use must give rise to a cause of action by the owner against the claimant. [Citations.] This ensures that a prescriptive easement can arise only if the owner had an opportunity to protect his or her rights by taking legal action to prevent the wrongful use, yet failed to do so. [Citations.]” (McBride, supra, 18 Cal.App.5th at p. 1181.)

“Prescriptive rights ‘are limited to the uses which were made of the easements during the prescriptive period. [Citations.] Therefore, no different or greater use can be made of the easements without defendants’ consent.’ While the law permits increases in the scope of use of an easement where ‘the change is one of degree, not kind’, ‘an actual change in the physical objects passing over the road’ constitutes a ‘substantial change in the nature of the use and a consequent increase of burden upon the servient estate … more than a change in the degree of use.’ ‘ “In ascertaining whether a particular use is permissible under an easement appurtenant created by prescription there must be considered … the needs which result from a normal evolution in the use of the dominant tenement and the extent to which the satisfaction of those needs increases the burden on the servient tenement.” ’ ‘[T]he question of whether there has been an unreasonable use of an easement is one of fact … .’ ” (McLear-Gary, supra, 25 Cal.App.5th at p. 160, internal citations omitted.)

Secondary Sources

12 Witkin, Summary of California Law (11th ed. 2017) Real Property, § 415 et seq.
10 California Real Estate Law and Practice, Ch. 343, Easements, § 343.15 (Matthew Bender)
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession, § 13.13 (Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 240, Easements, § 240.16 (Matthew Bender)
22 California Points and Authorities, Ch. 225, Trespass, § 225.180 (Matthew Bender)