4901 . Prescriptive Easement
[ Name of plaintiff ] claims that [he/she/ nonbinary pr onoun ] is entitled to a
nonexclusive use of [ name of defendant ]’ s property for the purpose of
[ describe use, e.g., r eaching the access r oad ]. This right is called a
prescriptive easement. In order to establish a prescriptive easement,
[ name of plaintiff ] must prove that for a period of five years all of the
following were true:
1. That [ name of plaintiff ] has been using [ name of defendant ]’s
property for the purpose of [ e.g., reaching the access road ];
2. That [ name of plaintiff ]’s use of the property was continuous and
uninterrupted;
3. That [ name of plaintiff ]’s use of [ name of defendant ]’s property was
open and easily observable, or was under circumstances that
would give reasonable notice to [ name of defendant ]; and
4. That [ name of plaintiff ] did not have [ name of defendant ]’s
permission to use the land.
New November 2019
Directions for Use
Use this instruction for a claim that the plaintif f has obtained a prescriptive
easement to use the defendant’ s property . A claimant for a prescriptive easement is
entitled to a jury trial. ( Ar cier o Ranches v . Meza (1993) 17 Cal.App.4th 1 14, 124
[21 Cal.Rptr .2d 127].)
If the case involves periods of prescriptive use by successive users (i.e., “tacking”),
modify each element to account for the prior use by others. ( W indsor Pacific LLC v .
Samwood Co., Inc . (2013) 213 Cal.App.4th 263, 270 [152 Cal.Rptr .3d 518],
disapproved on other grounds in Mountain Air Enterprises, LLC v . Sundowner
T owers, LLC (2017) 3 Cal.5th 744, 756 fn. 3 [220 Cal.Rptr .3d 650, 398 P .3d 556].)
There is a split of authority over the standard of proof for a prescriptive easement.
(Compare V ieira Enterprises, Inc. v . McCoy (2017) 8 Cal.App.5th 1057, 1074 [214
Cal.Rptr .3d 193] [preponderance of evidence] with Grant v . Ratliff (2008) 164
Cal.App.4th 1304, 1310 [79 Cal.Rptr .3d 902] [clear and convincing evidence].)
Sources and Authority
• “ ‘The elements necessary to establish a prescriptive easement are well settled.
The party claiming such an easement must show use of the property which has
been open, notorious, continuous and adverse for an uninterrupted period of five
years. [Citations.] Whether the elements of prescription are established is a
question of fact for the trial court [citation], and the findings of the court will
not be disturbed where there is substantial evidence to support them.’ ‘[A]n
essential element necessary to the establishment of a prescriptive easement is
visible, open and notorious use suf ficient to impart actual or constructive notice
of the use to the owner of the servient tenement. [Citation.]’ ” ( McLear-Gary v .
Scott (2018) 25 Cal.App.5th 145, 159 [235 Cal.Rptr .3d 443], internal citation
• “Periods of prescriptive use by successive owners of the dominant estate can be
‘tacked’ together if the first three elements are satisfied.” ( W indsor Pacific LLC,
supra , 213 Cal.App.4th at p. 270.)
• “[The] burden of proof as to each and all of the requisite elements to create a
prescriptive easement is upon the one asserting the claim. [Citations.] [Para. ]
. . . [The] existence or nonexistence of each of the requisite elements to create a
prescriptive easement is a question of fact for the court or jury .” ( T win Peaks
Land Co. v . Briggs (1982) 130 Cal.App.3d 587, 593 [181 Cal.Rptr . 25].)
• “[A] party seeking to establish a prescriptive easement has the burden of proof
by clear and convincing evidence. The higher standard of proof demonstrates
there is no policy favoring the establishment of prescriptive easements.” ( Grant,
supra , 164 Cal.App.4th at p. 1310, internal citation omitted.)
• “[Plaintif f] correctly contends that the burden of proof of a prescriptive easement
or prescriptive termination of an easement is not clear and convincing evidence
. . . .” ( V ieira Enterprises, Inc., supra , 8 Cal.App.5th at p. 1064.)
• “Whether the use is hostile or is merely a matter of neighborly accommodation,
however , is a question of fact to be determined in light of the surrounding
circumstances and the relationship between the parties.” ( W arsaw v . Chicago
Metallic Ceilings, Inc . (1984) 35 Cal.3d 564, 572 [199 Cal.Rptr . 773, 676 P .2d
• “ ‘The term “adverse” in this context is essentially synonymous with “hostile”
and “ ‘under claim of right.’ ” [Citations.] A claimant need not believe that his or
her use is legally justified or expressly claim a right of use for the use to be
adverse. [Citations.] Instead, a claimant’ s use is adverse to the owner if the use
is made without any express or implied recognition of the owner ’ s property
rights. [Citations.] In other words, a claimant’ s use is adverse to the owner if it
is wrongful and in defiance of the owner ’ s property rights. [Citation.]’ ”
( McBride v . Smith (2018) 18 Cal.App.5th 1160, 1 181 [227 Cal.Rptr .3d 390].)
• “Claim of right does not require a belief or claim that the use is legally justified.
It simply means that the property was used without permission of the owner of
the land. As the American Law of Property states in the context of adverse
possession: ‘In most of the cases asserting [the requirement of a claim of right],
it means no more than that possession must be hostile, which in turn means only
that the owner has not expressly consented to it by lease or license or has not
been led into acquiescing in it by the denial of adverse claim on the part of the
possessor .’ One text proposes that because the phrase ‘ “claim of right” ’ has
caused so much trouble by suggesting the need for an intent or state of mind, it
CACI No. 4901 REAL PROPER TY LA W
would be better if the phrase and the notions it has spawned were forgotten.”
( Felgenhauer v . Soni (2004) 121 Cal.App.4th 445, 450 [17 Cal.Rptr .3d 135],
internal citations omitted.)
• “Prescription cannot be gained if the use is permissive.” ( Ranch at the Falls LLC
v . O’Neal (2019) 38 Cal.App.5th 155, 182 [250 Cal.Rptr .3d 585], citation
• “Use with the owner ’ s permission, however , is not adverse to the owner .
[Citations.] T o be adverse to the owner a claimant’ s use must give rise to a
cause of action by the owner against the claimant. [Citations.] This ensures that
a prescriptive easement can arise only if the owner had an opportunity to protect
his or her rights by taking legal action to prevent the wrongful use, yet failed to
do so. [Citations.]” ( McBride, supra , 18 Cal.App.5th at p. 1 181.)
• “Prescriptive rights ‘are limited to the uses which were made of the easements
during the prescriptive period. [Citations.] Therefore, no di fferent or greater use
can be made of the easements without defendants’ consent.’ While the law
permits increases in the scope of use of an easement where ‘the change is one of
degree, not kind’, ‘an actual change in the physical objects passing over the
road’ constitutes a ‘substantial change in the nature of the use and a consequent
increase of burden upon the servient estate . . . more than a change in the
degree of use.’ ‘ “In ascertaining whether a particular use is permissible under an
easement appurtenant created by prescription there must be considered . . . the
needs which result from a normal evolution in the use of the dominant tenement
and the extent to which the satisfaction of those needs increases the burden on
the servient tenement.” ’ ‘[T]he question of whether there has been an
unreasonable use of an easement is one of fact . . . .’ ” ( McLear-Gary , supra , 25
Cal.App.5th at p. 160, internal citations omitted.)
Secondary Sources
12 W itkin, Summary of California Law (1 1th ed. 2017) Real Property , § 415 et seq.
10 California Real Estate Law and Practice, Ch. 343, Easements , § 343.15 (Matthew
2 California Forms of Pleading and Practice, Ch. 13, Adverse Possession , § 13.13
(Matthew Bender)
20 California Forms of Pleading and Practice, Ch. 240, Easements , § 240.16
(Matthew Bender)
22 California Points and Authorities, Ch. 225, T respass , § 225.180 (Matthew
REAL PROPER TY LA W CACI No. 4901
Page last reviewed May 2024
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