Adverse possession of easement

[welkin]

I don't know if this makes any difference but would that decision apply to an easement that is, and has been, regularly used for ingress and egress where only a side of the easement was closed off by the servient tenement owner.

There are basically two ways that easements are created. One is by grant usually within a deed for a specific purpose such as ingress/egress. The other is by prescription by use (requires a court to rule).

What we have here is a granted easement for ingress/egress of a certain width. The fact that the dominant estate has not used the entire width of the easement is not grounds for extinguishment and does not rise to a claim of AP by the servient estate.

None use of an easement does not extinguish the easement. It takes an intentional act to abandon the easement such as blocking off the easement by the dominant estate.

If the easement is appurtenant (and most granted easements are) they run with the land. The new owner of the dominant estate has every right to demand the removal of any impediment to the use of the entire easement.

Suppose that when the properties were developed only a 10 foot driveway was cleared of trees. Then later the property was sold and the new dominant estate wanted all the trees removed from the easement. What is the difference between a tree line and a fence line? The dominant estate gets to use the full easement.

 

[Red Kayak]

My question remains: is the en

There's probably 12' width of space. Although I don't see semi trucks going down there - I have seen cement mixers, dump trucks, and at one point SoCal Edison drove large trucks to replace a telephone pole. Not sure how much it matters, but there's a development of four houses down the street that are served by a driveway of similar width. In that case, a 23' wide easement was encroached on by the driveways of two houses in such a manner that the only access to the rear two houses is by a 10-11' driveway.

Thank you for clarifying.

The problem is, that's a big encroachment. It's not like the fence just meandered a little. If the fence was encroaching relatively negligibly, your neighbors would seem to be petty. However, 12' seems a tad narrow: their point is valid. In an emergency (think ambulances and fire engines), this might be considered a serious impediment.

 

[adjusterjack]

Although I am not arguing the extinguishment of the entire easement, just the portion enclosed by my fence.

Let me throw a monkey wrench into the works.

The previous owner of my house was asked to move the fence by the owners of the dominant tenement sometime around 2005 and his reply was basically - "I'm not moving anything, I bought what I bought and that's that!". I purchased my house in 2018

What EVIDENCE do you have that the previous owner of your property DIDN'T obtain consent for the use of that portion of the easement between 2005 and 2018 or even before.

Both previous owners are long gone and are unlikely to want to get involved in your situation.

Keep in mind that hearsay is unlikely to be admissible. Your statement about the former owner's reply is hearsay.

All you can actually prove is that you encroached without consent since 2018 and that's only 3 years. Not long enough to win adverse possession.

 

[SoCalJoe1965]

In all the cases you cited there is not one that only deals with a fence line. There are no permanent structures erected by you on the easement. There is nothing being stored by you on the easement.

Go and see the attorney and if he tells you that you have a case for AP ask a different attorney. Otherwise you will end up spending a great deal of money and years in litigation only to lose.

Please pardon my stubbornness, but per California Civil Code 323-325, it appears that adverse possession can be argued with the presence of a "substantial inclosure" or an improvement (permanent structure, etc.).

From Davis v Crump, 162 Cal. 513, 123 P. 294
"During the afternoon of January 8, 1910, between about 1:30 and 6:30 P.M. he inclosed such greater portion of the property in two separate parcels by the construction of substantial five-strand barbed wire fences, with redwood posts, twelve or fourteen feet apart, making two complete inclosures. It cannot well be claimed that these two parcels were not thenceforth each protected by a substantial inclosure (maintained by him), to an extent sufficient to satisfy the requirements of section 325 of the Code of Civil Procedure, as to the kind of possession essential to an adverse possession."

Additionally, how the area enclosed by the fence may have some bearing on the claim, but from Webber v Clarke 74 Cal. 11 (Cal. 1887) 15 P. 431

"The general principle which underlies all this class of cases is, that the acts of dominion must be adapted to the particular land, its condition, locality, and appropriate use. The philosophy of the rule is, that by such acts, the party proclaims to the public that he asserts an exclusive ownership over the land, and the acts which he performs are in harmony with his claim of title."

Thus, I would argue that the historic and current use of the enclosed section as a portion of the yard, to grow and maintain trees and other plants would be "in harmony" for uses of such land in the surrounding neighborhood.


California Civil Code

323.

For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases:

1. Where it has been usually cultivated or improved;
2. Where it has been protected by a substantial inclosure;
3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant;
4. Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.
(Enacted 1872.)

324.

Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely.
(Enacted 1872.)

325.

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

(1) Where it has been protected by a substantial enclosure.
(2) Where it has been usually cultivated or improved.
(b) In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.
(Amended by Stats. 2010, Ch. 55, Sec. 1. (AB 1684) Effective January 1, 2011.)

 

[SoCalJoe1965]

Let me throw a monkey wrench into the works.



What EVIDENCE do you have that the previous owner of your property DIDN'T obtain consent for the use of that portion of the easement between 2005 and 2018 or even before.

Both previous owners are long gone and are unlikely to want to get involved in your situation.

Keep in mind that hearsay is unlikely to be admissible. Your statement about the former owner's reply is hearsay.

All you can actually prove is that you encroached without consent since 2018 and that's only 3 years. Not long enough to win adverse possession.

Very good point, thank you for pointing that out. Now, let me ask you this. California has exceptions to the hearsay rule, one of which applies to statements made by individuals who are unavailable to testify, which is the case here since the previous owner lost his life in an automobile accident not too long ago. The exception is as follows:

"Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."

In my case, the previous owner stated that he would not move the fence after being told by the dominant estate to do so. Failure to move the fence encroaching on the easement would in turn subject him to the risk of civil liability as the dominant estate could file a complaint for a civil case. I also believe it is something a reasonable man would not say unless true.

What's your opinion on my interpretation of the rule?

Also, in a previous post, member @Tax Counsel posted:

" The hostile element of adverse possession means that the adverse possessor (you in this case) is using the property in a manner hostile to the interests of the true owner/possessor of the land. In other words, you are not using it with the consent/permission of the true owner. If the existence of the fence is interfering with the use of the easement that should be good enough. Generally consent is something for the party opposing adverse possession to prove."

Is this incorrect?

 

[Tax Counsel]

Is this incorrect?

I simply explained what the hostile element of adverse possession means. Whether you have a good case for adverse possession on this easement under California law, though, is something I've no opinion on since I don't practice in CA and property law does vary from state to state, especially when it comes to adverse possession. Each state has its own quirks in their adverse possession law. This is why I encourage you to see a property law lawyer in your state to review the situation you have and what options are available to you.

 

[adjusterjack]

What's your opinion on my interpretation of the rule?

Could go either way.

You've managed to come up with a variety of authorities that seem to support your position.

Be sure to come back, if you get sued, and report the outcome.

 

[SoCalJoe1965]

Could go either way.

You've managed to come up with a variety of authorities that seem to support your position.

Be sure to come back, if you get sued, and report the outcome.

Will do, although I hope it doesn't come to that point. I'm willing to negotiate and provide more space, but this guy wants it all in order to put in a 20-foot-wide roadway. This will mean a roadway just 2 feet from my two bedroom windows!

Thank you and everyone else who commented in the thread. The various opinions have made me think of aspects I hadn't thought of, and have helped me in making a list to ask the real estate attorney I'm meeting with.

 

[welkin]

Please pardon my stubbornness, but per California Civil Code 323-325, it appears that adverse possession can be argued with the presence of a "substantial inclosure" or an improvement (permanent structure, etc.).

From Davis v Crump, 162 Cal. 513, 123 P. 294
"During the afternoon of January 8, 1910, between about 1:30 and 6:30 P.M. he inclosed such greater portion of the property in two separate parcels by the construction of substantial five-strand barbed wire fences, with redwood posts, twelve or fourteen feet apart, making two complete inclosures. It cannot well be claimed that these two parcels were not thenceforth each protected by a substantial inclosure (maintained by him), to an extent sufficient to satisfy the requirements of section 325 of the Code of Civil Procedure, as to the kind of possession essential to an adverse possession."

Additionally, how the area enclosed by the fence may have some bearing on the claim, but from Webber v Clarke 74 Cal. 11 (Cal. 1887) 15 P. 431

"The general principle which underlies all this class of cases is, that the acts of dominion must be adapted to the particular land, its condition, locality, and appropriate use. The philosophy of the rule is, that by such acts, the party proclaims to the public that he asserts an exclusive ownership over the land, and the acts which he performs are in harmony with his claim of title."

Thus, I would argue that the historic and current use of the enclosed section as a portion of the yard, to grow and maintain trees and other plants would be "in harmony" for uses of such land in the surrounding neighborhood.




California Civil Code

323.

For the purpose of constituting an adverse possession by any person claiming a title founded upon a written instrument, or a judgment or decree, land is deemed to have been possessed and occupied in the following cases:

1. Where it has been usually cultivated or improved;
2. Where it has been protected by a substantial inclosure;
3. Where, although not inclosed, it has been used for the supply of fuel, or of fencing timber for the purposes of husbandry, or for pasturage, or for the ordinary use of the occupant;
4. Where a known farm or single lot has been partly improved, the portion of such farm or lot that may have been left not cleared, or not inclosed according to the usual course and custom of the adjoining country, shall be deemed to have been occupied for the same length of time as the part improved and cultivated.
(Enacted 1872.)

324.

Where it appears that there has been an actual continued occupation of land, under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely.
(Enacted 1872.)

325.

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:

(1) Where it has been protected by a substantial enclosure.
(2) Where it has been usually cultivated or improved.
(b) In no case shall adverse possession be considered established under the provision of any section of this code, unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes by the party or persons, their predecessors and grantors shall be established by certified records of the county tax collector.
(Amended by Stats. 2010, Ch. 55, Sec. 1. (AB 1684) Effective January 1, 2011.)

You really are not listening to what I post. Everything you quote is true if you are dealing with a case of AP. But you are not dealing with a case of AP in your situation.

Adverse Possession in the simplest terms is the use of property by someone that does not own the property and does not have permission from the fee owner to use it and it continues for a certain period of time. In CA that is 5 years. The use must be out in the open so the fee owner can see it. The use must be adverse to the ownership of the fee owner. Another requirement is the payment of taxes in CA but not all states require that.

So if I (a person you don't know) comes onto and uses your property to cultivate hay and you don't stop me for 5 years, I would have a claim for AP. But if you told me I could cultivate hay for free or by lease I would not have that claim.

The question you have to ask yourself is does my rear neighbor have permission to use my land for ingress/egress. And the only answer is yes he does by a granted easement. Next ask yourself the question if you have done anything to impede his use of the easement by placing permanent structures on his easement where you may take back some of the easement. No you haven't. A fence is not a permanent structure.

You don't have a adverse situation because the easement holder hasn't used the full width of the grant yet. You have a servient estate (you) and a dominant estate (your neighbor) with an established non-possessory right to use your property. Nothing is going to change that.

 

[Zigner]

Next ask yourself the question if you have done anything to impede his use of the easement by placing permanent structures on his easement where you may take back some of the easement. No you haven't. A fence is not a permanent structure.

I don't know why you believe a "permanent structure" is required...

California Code, Code of Civil Procedure - CCP § 325 | FindLaw

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:


(1) Where it has been protected by a substantial enclosure.


(2) Where it has been usually cultivated or improved.


I believe that most people would consider a fence that has stood for this length of time and has caused the area to be blocked off for the purposes of the easement to be a "substantial enclosure".

Please note that I am not commenting on whether or not the OP has a claim of adverse possession, rather, I am pointing out that you are incorrect when you state that a fence cannot give rise to a claim of adverse possession.

 

[welkin]

I don't know why you believe a "permanent structure" is required...

California Code, Code of Civil Procedure - CCP § 325 | FindLaw

(a) For the purpose of constituting an adverse possession by a person claiming title, not founded upon a written instrument, judgment, or decree, land is deemed to have been possessed and occupied in the following cases only:


(1) Where it has been protected by a substantial enclosure.


(2) Where it has been usually cultivated or improved.


I believe that most people would consider a fence that has stood for this length of time and has caused the area to be blocked off for the purposes of the easement to be a "substantial enclosure".

Please note that I am not commenting on whether or not the OP has a claim of adverse possession, rather, I am pointing out that you are incorrect when you state that a fence cannot give rise to a claim of adverse possession.

A permanent structure is required to take back a part of an easement that was granted. That is why. As I have said many times now, this is not an AP case. OP has no claim to the dominant estate easement.

How about you do some research on the non-use of an easement and if that gives rise to a claim of AP. A little knowledge is a dangerous thing.

 

[adjusterjack]

but this guy wants it all in order to put in a 20-foot-wide roadway.

He's entitled to the whole 20 feet. That easement was probably granted before your house was built.

This will mean a roadway just 2 feet from my two bedroom windows!

Finally, the real motive for wanting to keep what doesn't belong to you.



Good luck.

 

[Zigner]

A permanent structure is required to take back a part of an easement that was granted. That is why. As I have said many times now, this is not an AP case. OP has no claim to the dominant estate easement.

How about you do some research on the non-use of an easement and if that gives rise to a claim of AP. A little knowledge is a dangerous thing.

I'm not disagreeing with you - I was merely attempting to clarify something you said, but in hindsight, your statement was clear that it was in relation to the easement only, and not adverse possession in general. In THIS case, I believe that the OP can be ordered by a court to remove the fence.

 

[SoCalJoe1965]

You really are not listening to what I post. Everything you quote is true if you are dealing with a case of AP. But you are not dealing with a case of AP in your situation.

Adverse Possession in the simplest terms is the use of property by someone that does not own the property and does not have permission from the fee owner to use it and it continues for a certain period of time. In CA that is 5 years. The use must be out in the open so the fee owner can see it. The use must be adverse to the ownership of the fee owner. Another requirement is the payment of taxes in CA but not all states require that.

So if I (a person you don't know) comes onto and uses your property to cultivate hay and you don't stop me for 5 years, I would have a claim for AP. But if you told me I could cultivate hay for free or by lease I would not have that claim.

The question you have to ask yourself is does my rear neighbor have permission to use my land for ingress/egress. And the only answer is yes he does by a granted easement. Next ask yourself the question if you have done anything to impede his use of the easement by placing permanent structures on his easement where you may take back some of the easement. No you haven't. A fence is not a permanent structure.

You don't have a adverse situation because the easement holder hasn't used the full width of the grant yet. You have a servient estate (you) and a dominant estate (your neighbor) with an established non-possessory right to use your property. Nothing is going to change that.

Ok, I understand now. The fact the the portion in question was never used has a bearing on whether there is an AP claim. Thank you.

@adjusterjack
The easement was actually recorded 4 years after my house was built. The previous owner subdivided his lot into two, recorded the easement. He then fenced off what is now my house and sold it along with the encroaching fence, which was later replaced by my predecessor on the same location.
The original owner lived in the rear lot for decades without any issues. It is now the new owners who want the fence moved.

 

[Softpaw]

I purchased a property burdened by a 20-foot right of way easement that grants street access to property/house behind mine. This house has been served by a 10' driveway since it was built in the mid 1960s.
My property is surrounded by a fence line that has been in place for over 50 years. The fence was replaced by the previous owner of my house. All that time, the fence has encroached over a portion of the easement. The previous owner of my house was asked to move the fence by the owners of the dominant tenement sometime around 2005 and his reply was basically - "I'm not moving anything, I bought what I bought and that's that!".
I purchased my house in 2018 and the rear property was sold to new owners soon after. They are now threatening legal action to make me remove the portion of the fence encroaching on the easement because according to them it creates an "unreasonable burden" to their egress/ingress rights.

My question is - do I have a case to extinguish the encroached upon portion via adverse possession?
1) The 6' redwood fence has completely enclosed the disputed portion for over 50 years, in which time said portion has been used as part of the back yard to grow trees 20-30 feet high.
2) The fence was obviously "open and notorious" since the owners of the servient tenement would see it upon entering their driveway.
3) Taxes have been paid since the easement portion was not assessed separately from the rest of the property.
4) When the previous owner was asked to remove the fence he refused, which I believe meets the "hostility" clause.

Item 4 is what concerns me though, as the previous owner has passed away. I only know of his refusal to move the fence from a conversation I had with a neighbor who used to visit with him.

Before you start spending money on an attorney, have you thought about looking at local and county codes and ordinances? What is the length of the easement? Some counties require the easement be 20' wide if the dominant property is no less than 100' from the road and has one sfr. For multiple dwellings, the easement must be 40' wide. And this is a fire easement and it cannot be waived. Just giving you a different perspective.

 

[Red Kayak]

Before you start spending money on an attorney, have you thought about looking at local and county codes and ordinances? What is the length of the easement? Some counties require the easement be 20' wide if the dominant property is no less than 100' from the road and has one sfr. For multiple dwellings, the easement must be 40' wide. And this is a fire easement and it cannot be waived. Just giving you a different perspective.

It's a low priority for him. As I noted in post 22:

If the fence was encroaching relatively negligibly, your neighbors would seem to be petty. However, 12' seems a tad narrow: their point is valid. In an emergency (think ambulances and fire engines), this might be considered a serious impediment.

Notice the in depth, nuanced response to my comment from OP in the posts that follow. [SARCASM]

The neighbors have a legitimate concern.