Daily Development for
Thursday, September 26, 1996

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

EASEMENTS; CREATION; PRESCRIPTION: California court holds that fencing an area as part of one's back yard for the prescriptive period does not establish a prescriptive easement, and must be evaluated as a claim of adverse possession. Silacci v. Abramson, 53 Cal. Rptr. 2d 37 (Cal. App. 1996)

Adverse claimant had built a three foot high picket fence on property adjacent to his own. He enclosed approximately 1600 square feet as part of his backyard, and used it for back yard garden purposes thereafter. At the time, claimant had permission from the then owner of the disputed parcel to undertake certain flood control measures, but not to fence the property off.

The court does not indicate how long the fence remained in place. California's adverse possession and prescriptive easement period is rather brief - only five years. But adverse possession requires the payment of taxes, and therefore there could be no adverse possession claim here. But the court awarded the adverse claimant claimant an exclusive prescriptive easement.

There was some evidence in the transcript concerning acquiesence by the adverse user in the title of the true owners, and some evidence of permission from the owners, but the trial court resolved all of that evidence in favor of the adverse user, and the court on this appeal did not base its determination on those grounds.

Rather, the court concluded that exclusive use of property enclosed by the user within a fence cannot give rise to a prescriptive easement, but must be evaluated as an adverse possession claim or nothing. It commented:

"An exclusive prescriptive easement is . . . a very unusual interest in land. The notion of an exclusive prescriptive easement, which as a practical matter completely prohibits the true owner from using his land, has no application to a simple back yard dispute like this one. . . To permit [adverse user] to acquire possession of [true owner's] land, and to call the acquisition an exclusive prescriptive easement, perverts the classical distinction in real propery law between ownership and use."

Comment: Of course, most jurisdictions impose a longer adverse possession period, but do not require the payment of taxes for adverse possession to arise. The useage here clearly would have been sufficient for adverse possesion in most states. But what if the claimant believed that it was entitled to no more than a use right? Would the fact that the true owner had never interfered with the adverse use change the claim into adverse possession? The editor thinks not. The claim would still be a prescriptive easement. Such emoluments of ownership as mineral rights, air rights, and control over future changes in use of the property in question would remain with the true owner. In light of that fact, it does seem appropriate to conclude that these facts could give rise to a prescriptive easement depending on the evidence of the state of mind of the claimant. The court's report doesn't tell us enough about the claimant's state of mind to reach any conclusion as to whether the argument is appropriate here, but perhaps the court should have remanded for further clarification of that issue.

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