In Grant v. Ratliff, (— Cal.Rptr.3d —, 2008 WL 2747173, Cal.App. 2 Dist., July 16, 2008), a California Court of Appeal considered whether the use of a road by the son of the owner was sufficient to establish a prescriptive easement for subsequent purchasers. The Court of Appeal concluded that the son’s use was a matter of family accommodation and did not amount to a claim of right. Therefore, it did not establish a prescriptive easement.
George and Claire Leage owned 33 acres of land in Morro Bay, California. The property was divided into two parcels: Parcel A consisted of 13 acres and Parcel B consisted of the remaining 20 acres. A roadway ran along the boundary of the two parcels and was not a recorded easement.
In 1984, George and Claire entered into a post-nuptial agreement allocating Parcel A to Claire and Parcel B to George. The Leages’ separated in 1985 and each parcel became the sole and separate property of George and Claire. In 1986 George and Claire divorced. George continued to live on Parcel A with his son Brandon until 1988. After George and Brandon left, the Leages’ other son Troy lived on Parcel A until 1992.
In 1995 and 1999, George sold Parcel B to C. Wayne Ratliff in two separate transactions. In 1997, Claire sold Parcel A to Daniel and Carol Grant. Following the close of escrow on Parcel A, Ratliff posted signs on Parcel B pursuant to Civil Code section 1008 which prevents any person’s use from becoming a prescriptive easement.
The Grants sought to establish a prescriptive easement over Ratliff’s land based on the Leages’ sons’ use of the land from 1986 to 1992. The trial court found the sons’ use of the land was for the accommodation of family members and not a claim of right establishing a prescriptive easement. The Grants appealed that finding.
The Court of Appeal began by stating the standard to establish an easement by prescription. Specifically the court said, “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which is continuous and uninterrupted for five years and adverse to the land’s owner.”
The Grants argued that the Leages’ sons’ use of the land during the time that the sons lived on Parcel A was not an accommodation for family members, but instead established a prescriptive easement. Specifically, the Grants insisted that the Leages’ sons’ use was open, notorious and continuous, and was therefore presumptively adverse to the owner. If the Grants were correct, this would shift the burden onto Ratliff to prove that the sons’ use was not adverse, whereas without the presumption, this burden fell upon the Grants.
The argument asserted by the Grants was not unfounded. In what the Court of Appeal described as “a split of authority,” the California Supreme Court has two different opinions in apparent contradiction of each other over the issue of presumptions in prescriptive easement cases. In O’Banion v. Borba, (1948) 32 Cal.2d 145, the California Supreme Court rejected the use of presumptions; whereas in Warsaw v. Chicago Metallic Ceilings, Inc., (1984) 35 Cal.3d 564, the same court was apparently willing to embrace an analysis with presumptions.
The Court of Appeal here remedied the apparent conflict by suggesting that there really is no conflict between the two cases. The court explained that in Warsaw, and a number of other opinions dealing with prescriptive easements, various courts often refer to presumptions, when these courts are actually discussing the issue of the sufficiency of the evidence to make a finding of whether the use was adverse or not to the landowner. In other words, the analysis meant nothing more than the open, notorious and continuous use of another’s land is sufficient evidence to support a finding that the use was adverse.
With the issue of presumption settled, the Court of Appeal quickly dismissed the Grants’ remaining arguments. The court pointed out that there is no evidence to suggest that the family relationship between the Leages and their children was anything but a normal family relationship. Thus, the Leages’ sons’ use of the land could not be adverse to the interest of the land owner, Claire Leage. Therefore, the Court of Appeal concluded the Grants’ attempt to gain a prescriptive easement based on the Leages’ sons’ use of the land was misplaced and the judgment of the trial court was affirmed.