Prescriptive Easement or Poor Practice?

[Steve Martin]

Looking for input on this situation:

A city with relatively high property values has a lot of narrow asphalt lanes meandering through the hills, with no curbs and gutter.

The 100 year old sub map shows a 100' radius curve for the dedicated right of way. The roadway as it exists now has a larger radius curve, say 300' to it in the same area, which cuts into the privately owned lot on the inside of the curve.

The City (no surveyors on staff) takes the position that wherever their roads exist, they have prescriptive rights, and no additional easement is needed.

The Utility District replaces a pipeline within the roadway, across this private lot and proposes to adopt the same attitude as the City, no additional easement is needed.

Are there any legal and professional practice ramifications to adopting such a policy?

[mpallamary]

If I may, there is no prescriptive easement until it is perfected. The elements may exist but a court of law needs to PERFECT the claim. Have the property owners been contacted?

It is sort of like me telling you, you owe me $100. If I have a receipt and can prove it, I win.

It is undoubtedly a case of a city attorney reading an article many years ago and thinking they have the answer.


"Perfection: Formal recognition. A user of an easement may bring a lawsuit to perfect a prescriptive easement. For example, the court can perfect the easement for a landlocked neighbor who demonstrates open use of an access corridor against the interest of the landowner, continuously, over the statutory period of years."

[dedkad]

I don't have the code section at my fingertips, but if the road is open to the public and the City has expended funds to maintain it, then the public has the right to use it.

[LS_8750]

I know an area where this exact scenario is happening.
Nobody wants to do anything about it, it's been like that for a hundred years.

As a question to your scenario, were the improvements constructed prior to city accepting the dedication?

[DWoolley]

I agree with Mike Pallamary's answer above. There is no prescriptive easement - which has a definition and a process. We occassionally have folks submit documents for review labeling "prescriptive easement" on a road and we request a copy of the adjudication documents. We have never received adjudication documents. Not sure how that label ever became a thing, nonsense. Arguably, a claim could be filed against the land surveyor for slader of title.

DWoolley

[steffan]

CA Civil Code:

"1009.

(d) Where a governmental entity is using private lands by an expenditure of public funds on visible improvements on or across such lands or on the cleaning or maintenance related to the public use of such lands in such a manner so that the owner knows or should know that the public is making such use of his land, such use, including any public use reasonably related to the purposes of such improvement, in the absence of either express permission by the owner to continue such use or the taking by the owner of reasonable steps to enjoin, remove or prohibit such use, shall after five years ripen to confer upon the governmental entity a vested right to continue such use."

Question being, does the government entity need to perfect title to continue maintaining the facilities contained within the area where the appearance of prescriptive right is evident? What about making improvements, such as upsizing a water main?

I recall a court case but don't have it at my fingertip at the moment, where a fiber optic firm wanted to place a new line along a county road shoulder. A couple of adjoining land owners smelling money to be made, claimed that the (apparent) prescriptive right the county enjoyed only provided for the existing facilities, and that the county could not issue an encroachment permit to the fiber optic company without compensation to the underlying fee owner.

The courts disagreed. Nor did this action result in a perfection of title. The county still enjoys a far reaching (appearance of) prescriptive right.

Perhaps of interest. In Section 8.69.19.02 of the Caltrans RW manual, it states that "When an existing highway right of way was acquired through prescription, easements for the widening of the highway right of way (grade crossing) should not describe the existing right of way. If the state accepts an easement that describes the existing prescriptive right of way plus the widened portion, this might be interpreted as an abandonment of the original highway. In that case, the conditions and covenants contained in the document would apply to both the existing highway and the widened portion. Since the states title by prescription may be less restrictive than the new rights obtained, this might mean the state may be divesting itself of rights previously acquired by prescription."

Here, the state is clearly making policy against pursuing perfection of title through grant. They are recognizing a less restrictive empowerment enjoyed through usage alone. Note that when CT states "through prescription", it is not referring to adjudicated prescription, but rather apparent prescription.

Interestingly, the courts have taken a complete 180 degree approach when it comes to private parties and easement rights as opposed to publicly held easement rights. Both (apparent) prescriptive, and out right granted easements. For private party vs private party prescriptive right questions, I'm more inclined to think along the lines of what Mike and Dave are saying.

[dedkad]

Perhaps of interest. In Section 8.69.19.02 of the Caltrans RW manual, it states that "When an existing highway right of way was acquired through prescription, easements for the widening of the highway right of way (grade crossing) should not describe the existing right of way. If the state accepts an easement that describes the existing prescriptive right of way plus the widened portion, this might be interpreted as an abandonment of the original highway. In that case, the conditions and covenants contained in the document would apply to both the existing highway and the widened portion. Since the states title by prescription may be less restrictive than the new rights obtained, this might mean the state may be divesting itself of rights previously acquired by prescription."

Here, the state is clearly making policy against pursuing perfection of title through grant. They are recognizing a less restrictive empowerment enjoyed through usage alone. Note that when CT states "through prescription", it is not referring to adjudicated prescription, but rather apparent prescription.

Interesting. Might have to do with ensuring that the State's use pre-exist any utility companies, so that the utility companies would have to pay for relocation if needed.

[Steve Martin]

Clark,

I do not have any information on the paving 100 years ago. I would suspect they were unpaved back then, but really do not know.

Jeff,

Thanks for the info. Let me know if you come across that court case again.

Thanks Dave and Mike for weighing in.

[mpallamary]

Always a pleasure my old friend!

[-Dave Ryan-]

Private and public prescription have to be treated differently. My work with public agencies uses the following when a road has been maintained by that agency for the requisite period of time, and neither deed nor dedication documentation can be located.

"Implied Dedication": when a road has been open for public use without interruption for more than 5 years, an "implied common law dedication" is established. [Miller and Starr, California Real Estate §26:10; Friends of the Trails v. Blasius, (2000) 78 Cal. App. 4th 810, 821; Hanshaw v. Long Valley Road Assn. (2004) 116 Cal. App. 4th 471]

Dave Ryan-
Arcata

[mpallamary]

Thanks! I still believe it has to be perfected by the courts, to prove and demonstrate the requisite elements exist. It is one thing to make the claim - it is another thing to prove it. I believe there must be evidence on the record, at least something the court can rely on. There has to be a record made as a general rule of law.

It is sort of like claiming someone owes you money without proof.

:)

Good stuff.

[PLS9196]

The implied dedication, and frankly acceptance is pretty clear, this favors the municipal body and the precise location could potentially be subject to option. Whether it be court action, easement deed or grant, an additional action IMO should be looked into to perfect/protect the public property owners rights/title. Mr. Pallomary's summery with respect to proof would seem spot on.

[-Dave Ryan-]

Something that plays into easements potentially created through prescription is who the client is. In the case Steve presents, it involves a public agency.

But setting that aside for a moment, his situation could be viewed more as a survey location issue rather than whether or not an easement exists. Miles and miles of roads in my County were created via Road Register and/or accompanying deeds, both equally legitimate means to create a public easement right. These were usually PI to PI descriptions that if laid out on the ground today don’t match the historical alignment very well. In these cases, I would use the Road Register or deed as the instrument that created the right (and the width), and hold the existing road alignment for the location. Typically these may be situations in rugged terrain where not many options exist for placing a road. Or maybe it shows on old aerial photography as always having been in the seam location.

Getting back to who the client is, if this involved a couple of private parties, I would take a conservative approach in making “executive decisions” regarding what rights they really have; the original description/location or the current longtime location (probably not both- at least I wouldn’t advise that). I would see my role as advising the client as to the facts and maybe discuss the outcome of some prior similar court cases. Then it’s up to them to decide to leave it alone or pursue some further course of action; work it out with the adjoiner via exchange of deeds or litigation. So, I agree with those who contend prescription is merely a claim, and until there is some process that occurs to formalize it, whether litigation or deeds, it’s up in the air.
I tend to take a different view in my years working for public agencies when the client is the public, i.e. a City or county road. Or in practical terms, you could view the client as the engineers who are designing projects and ask me to define the rights-of-way they have to work within. A typical scenario that causes me no heartache: a County road, in the road system, getting road fund taxes, that has been maintained by the county for multiple decades, and has a clearly defined road prism, but no deed or dedication can be found. Fire trucks use it, utility companies, everyone who has to get to the neighborhoods or businesses it serves, and have been for years and years. I provide a drawing with linework encompassing that road prism (pavement, drainage ditches, areas mowed or maintained out to fences, etc. if applicable) and label it as right of way via implied common law dedication. I advise no further action is necessary unless there’s a desire to get new deeds from every landowner, in which case they can put me and the right of way dept. to work on that task. I read those cases I cited earlier and interpret that a dedication has occurred. Certainly it is “implied”, and any member of the public can step forward and sue.
This is just to provide one perspective how a surveyor can be confident in defining a R/W created through prescription, and not see the necessity for further action. Many scenarios could be presented containing a little different wrinkle that require a slightly different approach. Maybe you do have to tell the engineers, don’t design that sidewalk, or forget your repaving job until we acquire some R/W here.

There’s nuance to consider regarding the public or private scenario.

[LS_8750]

Prescription and Implied Dedication are for lawyers to handle.
Nobody seems to want to touch em.

I've been asked point blank on the witness stand during arguments re implied dedication/acceptance, "Does this 60-inch diameter pipe belong to the County?"

My response: "As a professional engineer I tell you that the pipe you are referring to is carrying the public's stormwater from the upland state highway, through these several subdivisions and into and through this pipe, except when it overflows. As a professional land surveyor I tell you that this pipe was constructed by the developer and is located within the limits of a storm drain easement dedicated to the public, or County, in 1984. To this day, the County has not formally accepted that dedication."

I don't recall if the judge acknowledged the easement dedication as having been implicitly accepted by that County's actions. The case had many facets.

In any case, everybody seems to like to play reindeer games with these terms.

Be careful not to make assumptions that might not be correct.

[Steve Martin]

Thanks Dave,

The issue is generally with old subdivision mapped roads rather than 19th Century County roads. But take your case of implied dedication, does that include rights for another public agency to come a build a pipeline within that implied dedication roadway?

The City in question makes no effort to perfect easements, just continues to pave where they will and assume prescriptive rights over its citizens property.

Clarke,

I agree that people are making assumptions. Including where is the actual right of way.

Isn't paving over a portion of someone's property without permission or easement a taking without just compensation?

Steve

[mpallamary]

"America’s Founders understood clearly that private property is the foundation not only of prosperity but of freedom itself. Thus, through the common law, state law, and the Constitution, they protected property rights — the rights of people to acquire, use, and dispose of property freely. With the growth of modern government, however, those rights have been seriously compromised. Unfortunately, the Supreme Court has yet to develop a principled, much less comprehensive, theory for remedying those violations. That failure has led to the birth of the property rights movement in state after state. It is time now for Congress to step in — to correct the federal government’s own violations and to set out a standard that courts might notice as they adjudicate complaints about state violations.

"The Constitution protects property rights through the Fifth and Fourteenth Amendments’ Due Process Clauses and, more directly, through the Fifth Amendment’s Takings Clause: “nor shall private property be taken for public use without just compensation.” There are two basic ways government can take property: (1) outright, by condemning the property and taking title; and (2) through regulations that take uses, leaving the title with the owner — so‐​called regulatory takings. In the first case, the title is all too often taken not for a public but for a private use; and rarely is the compensation received by the owner just. In the second case, the owner is often not compensated at all for his losses; and when he is, the compensation is again inadequate.

https://www.cato.org/cato-handbook-poli ... nstitution

[gletts]

I agree with Mike Pallamary's answer above. There is no prescriptive easement - which has a definition and a process. We occassionally have folks submit documents for review labeling "prescriptive easement" on a road and we request a copy of the adjudication documents. We have never received adjudication documents. Not sure how that label ever became a thing, nonsense. Arguably, a claim could be filed against the land surveyor for slader of title.

DWoolley

The practice of a claim is most used by utilities to justify occupations established in the field without a perfected claim either from a Court or from public record after the rights had been legally obtained.

[RAM]

Jumping in,

did a quick read so, excuse me if I missed a point or two.

In my county, it is basically what Dave said, approx. 1200 miles of roads which do not have a formal document or process which created easements, but all those portions within the publicly maintained system have been used, maintained and funded by the public for decades, in a few cases since the formation of the State. Is it prescriptive? no, it is implied. IMHO there is no need to claim or perfect a prescriptive easement unless it is challenged. If not challenged, move on. As development occurs, formal easements are created and accepted through the subdivision process. As Dave discussed, as publicly maintained roadways are improved, expanded or re-aligned, formal easements are acquired to encompass the improvements. My take is the implied easement is good for the implied use. If as a road, and public funds for roads are used for maintenance, then the easement is for a road, but not necessarily a pue. if pue's have been in place and uncontested, replacement of the pue in place should be allowed, but a installation of a new pue or a relocation would require new formal easement. Implied easements also encumber my agency with additional work, each time we do something outside of the normal, we have to secure a right of entry for the specific activity, so perfection of the rights or creation of formal easements would make my daily life much easier, but here individual property rights and less government oversight is a valued belief, so not likely to change soon.

[mpallamary]

And, of course, there is the question of liability. What if someone is injured while driving on one of these "roads?" You can bet your bottom dollar, everyone will disavow their so-called road rights. It's funny how a good lawsuit turns into a "Come to Jesus" experience!

[wingding]

Circus lots....one of my counties has a trillion + in real estate value with lots given away as circus raffles
Don't leave your block for control