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by CareyBot

Editor’s note: Robert Bruss is temporarily away. The following column from Bruss’ “Best of” collection first appeared Sunday, July 2, 2006.

In 2000, Richard and Lilia Aaron bought their residential property. The only access to a public road over their land is a one-half-mile-long, steep driveway, which is difficult to use, especially in inclement weather.

Regular use of that driveway had been discontinued by previous owners for about 20 years because there was a more convenient access over a paved private road, known as Texaco Road, which crosses adjoining property owned by Dallas and Patricia Dunham.

Purchase Bob Bruss reports online.

Not long before the Aarons’ property purchase, the Dunhams began to limit use of the road. Evidence shows the road was created in 1982 by Texaco, which used it to reach nearby leased property.

The prior owners of the Aaron property used the Texaco Road without asking or receiving permission. But in 1999 the Dunhams wrote a letter to the prior owners, the Fullertons, revoking permission to use the road. The Aarons were aware of the dispute when they bought their home in 2000.

Shortly after purchase, the Aarons brought this declaratory relief lawsuit against the Dunhams, claiming a prescriptive easement to continue using the private Texaco Road over the Dunham land. They argued the previous owners’ use of the road was adverse, open, notorious and continuous without permission of the property owners, so a prescriptive easement was thereby created.

If you were the judge would you rule the Aarons have a prescriptive easement to continue using the Texaco Road?

The judge said yes!

To create a prescriptive easement, the judge began, the nonpermissive use must be adverse, open, notorious and continuous for the time period specified by state law. The evidence shows the use by the previous owners of the Aaron property was without the express permission of the Dunhams, he added.

If the past use had been permissive, that permission could be revoked and there could be no prescriptive easement created because there was no adverse or hostile use, he commented.

But the evidence shows the Aarons and the previous owners used the Texaco Road over the Dunham property without express permission for many years, the judge emphasized.

Because they have another route, although inconvenient, to reach their property from the public road, the Aarons are not entitled to an easement by necessity, he noted. However, they have proven all the elements and are therefore entitled to be granted a prescriptive easement to use Texaco Road across the Dunham property, the judge ruled.

Based on the 2006 California Court of Appeal decision in Aaron v. Dunham, 41 Cal.Rptr.3d 32.

(For more information on Bob Bruss publications, visit his
Real Estate Center
).