by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; CREATION; PRESCRIPTION: Second California case denies exclusive prescriptive easement in misplaced fence situation. Mehdizadeh v. Mincer, 54 Cal. Rptr. 2d 284 (Cal. App. 1996) Adverse claimant's predecessor had built a fence on a slope between his property and the uphill landowner. The fence was in fact ten feet higher on the slope than the property line. Subsequently, the predecessor sold to claimant, who, for a period longer than California's remarkably short five year adverse possession period, maintained the fence, watered the landscaping on the slope, and permitted his dog to run on the slope. Thereafter, the uphill neighbor ran a survey and identified that the fence intruded on his property. The neighbor built another fence ten feet further down the slope, on the property line.

The trial court denied claimant's adverse possession claim because California statute requires the payment of taxes to establish adverse possession in such cases. Claimant had not paid taxes on this property. Nevertheless, the trial court attempted to do "substantial justice" by recognizing ownership in the claimant under the "agreed boundary" doctrine and then awarding to the neighbor an easement for privacy, light and air. The trial court, apparently in the alternative (or anticipating an appeal) also found that the claimant had established an exclusive prescriptive easement in the overlap area on the slope.

On appeal, held: reversed: As to the agreed boundary holding, the court concluded that there was insufficient evidence that the boundary was in dispute at the time the orginal fence was built - a requrirement in California for operation of the doctrine. This is an interpretation of the evidence that justifies little comment here.

As to the prescriptive easement question, however, the court continued a California interpretive trend that is worthy of some note. It court referred to the recent California decision in Silacci v. Abramson, 53 Cal. Rptr. 2d 37 (Cal. App. 1996) (the 9/26/96 Daily Development) in holding that an exclusive prescriptive easement will not be awarded to a private claimant, as to do so would be in effect to award adverse possession under circumstances in which the statute precludes adverse possession. The court differentiated cases involving public agency adverse possession, where public policy and safety concerns might dictate that exclusive use is necessary.

Comment 1: Although the court reverses the court below concerning the finding of a prescriptive easement, it appears that the reversal would apply only to the finding of an "exclusive" prescriptive easement. In Silacci, the party claiming a "fence easement" had not otherwise made use of the enclosed land. But here the claimant did use the land for the prescriptive period. One would think that the claimant would still have access to the claimed land for the purpose of running of his dog and maintaing the landscaping on the slope. But one cannot find this conclusion in the court's ruling.

Comment 2: The court concludes that a exclusive "fence easement" such as the claimant was seeking is the equivalent of a transfer of ownership. Such a right effectively denies physical access to the former owners. That's why the court concluded that claimant's position was the equivalent of an adverse possession claim and, since claimant hadn't paid taxes, ought to be denied.

But one could argue that the owners retained a number of other elements of ownership, such as underground rights, air rights, water rights (where applicable) and the right to control future use and development of the site. By determining that the claimant's easement would amount to "ownership," even without these other benefits passing, the court makes a determination as to just what ownership really means. The issue perhaps is more profound than to be tossed off in a few lines in a case such as this. (Or a comment such as this one.)

Comment 3: It is difficult to accept without further analysis the court's determination that a public agency ought to be able to obtain rights by exclusive prescriptive easement that a private party cannot. If anything, the presumption ought to be that the state ought to compensate for interests that it usurps.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

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