Long, Uninterrupted Use Of Road Across Private Property Establishes Easement For Neighboring Property Owners

In Aaron v. Dunham (— Cal.Rptr. 3d —, 2006 WL 636790, Cal.App. 1 Dist., Mar. 15, 2006), a California Court of Appeal considered a case in which a property owner sought to establish that he had an easement across a neighbor’s property, due to the fact that prior owners of his property had used a road across the neighboring property for a period of at least five years, without seeking or obtaining permission to do so.

The Court upheld a jury’s decision that the open and adverse (meaning without the owner’s permission) use of the road by prior owners of the neighboring property, for a period of at least five years, established the easement.


Richard and Lilia Aaron (“Aaron”) owned property in Fortuna that adjoined property owned by Dallas and Patricia Dunham (“Dunham”). Across the Dunham property was a road built by Texaco to access natural gas wells it operated under the terms of a lease with area property owners, which, among other things, allowed it to build and maintain roads across the property. The road provided convenient access to the Aarons’ property, and they and prior owners had long used it for that purpose.

Shortly before the Aarons bought their property in 2000, the Dunhams notified the prior owners that they were revoking permission for them and later owners to use the Texaco road. Immediately after moving onto their new property, the Aarons filed a lawsuit, seeking to establish that the use of the road by prior owners created a “prescriptive easement” that gave them the right to continue using it. A jury agreed, and the Dunhams appealed.


The Court cited Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 199 Cal.Rptr. 773), in which the California Supreme Court ruled that to claim a prescriptive easement, a party must “show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of at least five years.” In this case, such use of the road had occurred for more than 20 years, and without interruption from at least 1990 to 1995.

The Court found that the Dunhams’ claim that a sign posted on the road by Texaco indicating that the right to use the road needed permission disallowed the easement lacked merit, because Texaco was not the property owner. Civil Code Section 1008 specifies that a prescriptive easement cannot be obtained if the property owner posts an appropriate sign. Texaco’s sign was meaningless since it lacked the legal authority to grant the permission, the Court ruled.

The requisite uninterrupted use of the road had therefore established the Aarons’ right of prescriptive easement to use the road, the Court concluded. The jury’s decision was upheld.

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