A recent boundary-line/easement dispute arose here on the Peninsula, which resulted in
a double homicide. Therefore, it seems that an understanding of the basic law in this area and how to avoid such
disputes is timely.
Case
law has historically been and continues to be fact sensitive, which means that the determination of the case turns on
the specific facts of each situation. However, some prominent cases do exist, which lend a hand to understanding
the basic law of prescriptive easements, licenses, boundary agreements, adverse possession and other boundary issues.
This page
is an attempt to provide only a general overview of two legal concepts pertaining to boundary disputes. It
remains necessarily incomplete because each situation creates its own limitations and exceptions.
1. The Misunderstood Prescriptive Easement, or
"You can't gain prescriptive rights by putting a fence on your neighbor's property."
The general
statutory requirements for gaining a prescriptive right over another's property are adverse use for the five year
statutory period of time. Adverse use means that the use was open, notorious, continuous and uninterrupted, hostile
to the true owner and under claim of right.
Over the past 50 years, case law
has carved out many different interpretations and exceptions to these statutory guidelines.
In 1996 some comprehensive
appellate cases set some guidelines for when a prescriptive easement does not exist. Keep in mind that these are "appellate"
cases, which means that you may lose in the local superior court and be forced to appeal your action, at a significant cost,
to achieve another ruling.
Mehdizadeh
v. Mincer (1996) 46 Cal.App.4th 1296, was one such case. In Mehdizadeh, the appellate
court determined as follows:
"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 backyard dispute. An easement,
after all, is merely the right to use the land of another for a specific purpose-most often, the right to cross the land of
another."
In 1996, Monterey
Superior Court ruled that a prescriptive right in a backyard dispute did exist. That ruling was reversed
by the appellate court. That case was Silacci v. Abramson, (1996) 45 Cal.App.4th 558.
In Silacci, the facts were as follows:
"The landowner
brought an action for declaratory relief regarding land on which a fence was erected and was used as a backyard by the adjoining
neighbor, and defendant neighbor sought to quiet title to the prescriptive easement. The Superior Court of Monterey County,
in Case No. 93507, Robert A. O’Farrell, Judge, found that defendant had an exclusive prescriptive easement over a fenced-in
portion, and plaintiff appealed. The Court of Appeal, reversed the lower court and held that ". . . an
exclusive prescriptive easement did not apply to a simple backyard dispute."
The
obvious problem with fencing a neighbor out of a portion of his property is just that; he is denied use of his property.
A prescriptive easement is, by its very nature, a limited use of another's property, which does not wholly deprive
the
owner of the use of his property.
Thre are, however situations
where mutual agreement makes the prescriptive issue moot. This often occurs when two neighbors put up a party wall or
agree to equally share in the cost of a boundary line fence and mutually determine the location, even if they are relying
upon a prior fence location and have made a mistake. This is the doctrine of the Agreed Boundary.
2. The Exceptional Circumstances
of the Doctrine of the Agreed Boundary
The requirements of proof necessary to establish a title by agreed boundary
are well settled by the decisions in this state. (Mello v. Weaver, 36 Cal2d 456, 459; Hannah v. Pogue, 23 Cal2d 849, 856-857; Martin
v. Lopes, 28 Cal2d 618, 622-627;
Young v. Blakeman, 153 Cal. 477, 481-483.
The doctrine requires:
1. There be an uncertainty as to the
true boundary line;
2. An agreement between the coterminous
owners fixing the line; and
3. Acceptance and acquiescence in the line
so fixed for a period equal to the statute of limitations or under such circumstances that substantial loss would be caused
by a change of its position.
It is not required that
the true location be absolutely unascertainable (Price v. De Reyes, 161 Cal. 484, 489); that
an accurate survey from the calls in the deed is possible (Silva v. Azevedo, 178 Cal. 495, 498), or that the uncertainty
should appear from the deeds (Mello v. Weaver, supra, 36 Cal2d 456, 460). And, the line may be founded on a mistake. (Nusbickel v. Stevens
Ranch Co., 187 Cal. 15, 19.)
Thus, what may appear
to not meet the requirements of a prescriptive right, may still be acquisition and relinquishment of land, by mutual agreement.
However, title for both parties will not be clear until a court judgment and/or an instrument of conveyance is recorded.
In the event that
a dispute arises regarding whether or not a mutual agreement existed between adjoining land owners, one of several far
more reasonable methods of resolving the situation is by the conveyance of a limited easement, instead of resorting
to litigation.
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