An easement allows one party to use the land of another party for a particular purpose. Easements can be created in California in a variety of ways: by written agreement, by implication, by necessity, by equity, and, also, by prescription — adverse, notorious, open, and continuous use without the permission of the landowner for a five year period.
Not surprisingly, easements calling for the use of someone else’s property is an area ripe for disputes as owners, circumstances, and uses change; as a result, easements are one of the most heavily litigated areas in real property law. This is even more so in more rural areas, such as Lake Tahoe, Truckee and its surrounding areas.
The recent case of McBride v. Smith (2018) 2018 WL 286802 highlights the need to monitor the use of your land to avoid disputes, such as claims for expanded use.
McBride v. Smith – Scope of Written Easement Increased by Prescription
Typically, written easements are interpreted by looking at the plain meaning of the text of the easement, respecting any limitations of scope contained in the actual wording used in the easement. The easement means what it says, including any limitations on use. However, the McBride highlights some interesting aspects of easement law, while also confirming that a party can expand the use of a written easement agreement by prescription – open, notorious, continuous and adverse use for an uninterrupted period of five years.
McBride involves a rather complicated set of underlying facts, established through four different amended complaints. The trial court ultimately sustained a demurrer without leave to amend. The Court of Appeal reversed the trial court, finding that the facts pled by McBride in the Fourth Amended Complaint could establish a viable claim for nuisance and prescriptive easement.
Simplifying the Court of Appeal’s factual summary, McBride owned a parcel of land (1664 Spring) that had the right to use two separate access easements – (1) a Driveway Easement over 1660 Spring to access 1664 Spring; and (2) a Secondary Access Easement over 1670 Spring (owned by Defendant Smith). The Secondary Access Easement granted McBride the limited right to use a strip of land on 1670 Spring as a “secondary right of way” for “emergency ingress and egress.”
As is often the case, the dispute began when the owner of 1670, Defendant Smith, blocked the use of the Secondary Access Easement. Defendant Smith installed wood dividers, a heavy chain and a large pole which blocked McBride’s use of the Secondary Access Easement. McBride filed suit against Smith for trespass, nuisance, and prescriptive easement.
In her Fourth Amended Complaint, Plaintiff McBride fine-tuned her claims to the point where she alleged that she, and her predecessors, used the Secondary Access Easement for “primary access purposes” for at least five years, openly, notoriously, under claim of right, and, critically, on a daily basis. The Court of Appeal found that these allegations were not sufficient to establish a claim of trespass.
No Claim for Trespass
The Court of Appeal first analyzed McBride’s claim for trespass, and concluded that she had no such claim. Trespass is an “invasion of the plaintiff’s interest in the exclusive possession of land.” Because an easement is the right to use someone else’s land, and not the right of exclusive possession, McBride could not sue for trespass because Smith blocked her use of the Secondary Access Easement. The Court of Appeal made clear that McBride could sue to enjoin the obstruction, or for injunctive or declaratory relief under the Secondary Access Easement, however, this was not a trespass.
Claim for Nuisance
A nuisance is an “interference with the interest in the private use and enjoyment of land and does not require interference with possession.” However, the interference with the use must be substantial and unreasonable. Here, the Court of Appeal found that the obstructions placed by Smith were not substantial and unreasonable interferences with the Secondary Access Easement because the use of that easement was so limited in scope – for secondary and emergency access only. Nevertheless, the Court of Appeal found that McBride’s allegations were sufficient – taking all facts pled and inferences in her favor — that the obstructions on Smith’s property unreasonably and substantially interfered with her real property (1664 Spring) so as to state a claim for nuisance.
McBride May Expand the Scope of the Secondary Access Easement by Prescription
Finally, the Court of Appeal confirmed that “the existence of a grant of easement does not preclude the acquisition of greater rights by prescription.” The Court of Appeal found the allegations that McBride used the Secondary Access Easement for “primary use” and on a “daily basis” to be sufficient to establish an open, notorious, hostile and continuous use that exceeded the scope of the Secondary Access Easement, and could establish an expanded scope of use by prescription. While these allegations will likely be tested in discovery and further proceedings, they were sufficient to overcome the demurrer and to continue the fight in litigation.
The McBride case is an important reminder to parties whose lands are subject to easements – do not allow the party using an easement on your land to exceed the scope of the easement for any length of time, or else you run the risk of having the easement scope changed permanently. Barely surviving a demurrer does not mean that McBride will ultimately prevail, but it does mean the case will be a lot more expensive for Defendant Smith.
Property owners are advised to monitor use of real property for any use that may be unauthorized – whether under an easement or otherwise. This includes “neighborly” arrangements for the shared use of a driveway, mailbox, parking pad or other accommodation. Do not sit on your hands and allow the use to continue without taking action, with the only sure fire method to avoid a prescriptive easement being a lawsuit to enjoin the use.
However, although not as sure fire as a lawsuit, another less costly suggestion to prevent a claim of prescription would be to document that any change in scope of use of the easement is by permission, which would help to undermine the “adverse” use element of prescription. The permission would need to be granted before the five year period has run or else the prescriptive easement will have accrued already. Documentation of permission in a dated writing, preferably signed by both parties, is best advisable.
Brian C. Hanley is an attorney practicing in California and Nevada, and is a principal in the Porter Simon law firm located in Truckee, with offices in Reno and Tahoe City. He practices primarily in the areas of real estate, business, estate planning and homeowners’ association law. Brian may be reached at firstname.lastname@example.org or at the firm’s web site www.portersimon.com.
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The content contained and opinions expressed in this blog are solely those of the author. This blog contains content and opinions concerning the law generally, and is not intended to constitute legal advice or to create any attorney‑client relationship with the reader. The reader should consult with an attorney about any specific legal issues prior to embarking on any course of action or inaction involving legal matters.