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Fleharty Law
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530-604-4744

Easement Law


Whether you purchase real property or already own real property you may be subject to
easements owned by someone else who claims he has a right to your property. An easement is a
limited right to the use of another person’s property, and can be created in various ways, whether
by a deed, a prescriptive claim, or an easement by implication or necessity. Or, perhaps you are
the owner of an easement over real property. I have assisted hundreds of landowners over the
years to defend their real property against people who assert an easement right over your
property or assist clients to maintain a legal easement across real property.

1. What is a prescriptive easement?

Answer: A prescriptive easement is a claim based on the use of another person’s property
in an open, notorious, hostile and adverse fashion for a period of at least 5 years. The
method to perfect a prescriptive claim is to file a quiet title action in the superior court of
the county where the property is located. The most common example of a prescriptive
claim is when a person uses a road on some one else’s property to gain access to their
property.

2. How do you defend against a prescriptive claim?

Answer: The most common defenses against a claim for prescription is to show the use of
the road was with the permission of the landowner. There are various ways to show the
use was permissive pursuant to the Civil Code. One statute permits a landowner to record
a notice of revocable consent to the particular use of the land for the purposes described
in the notice. the recordation of the notice is evidence that all subsequent use of the
property is permissive. When the use is by a specific person, the notice must be served on
the person by certified mail. The consent to use the road can thereafter be terminated by
the property owner recording a notice of revocation. Another method is to post a sign at
each entrance of the property or at intervals of not more than 200 feet along the boundary
of the property. The signs should read as follows:” Right to pass by permission, and
subject to control by owner: Section 1008, Civil Code. Keep in mind that once the person
has used the road for over a 5 year period, and satisfied the above elements, the posting
of a sign of recording a notice has no effect of the prescriptive claim because it is now a
vested right so long as the claimant timely files a quiet title action.

3. How can the rights to an easement be lost?

Answer: It depends on the type of Easement. If it is a deeded easement the elements to
show abandonment are (1) non- use (2) a manifestation of intent of the owner to abandon
the easement and (3) a showing of damage to the underlying property owner. Some
courts have said that the satisfaction of the first 2 elements is sufficient. However is very.
very tough to show a “ manifestation of intent”. For example, the mere blocking of the
easement for a 5 year period is not enough. For a prescriptive easement the mere non-use
of the easement for a continuous 5 year period has been sufficient to show
extinguishment of the prescriptive claim.

4. Can I acquire an easement over government land?

Answer: No, as they saying goes, “ you cannot claim an easement against the King”
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