In 2000, Richard and Lilia Aaron bought their residentialproperty. The only access to a public road over their land is aone-half-mile-long, steep driveway, which is difficult to use, especially ininclement weather.
Regular use of that driveway had been discontinued byprevious owners for about 20 years because there was a more convenient accessover a paved private road, known as Texaco Road, which crosses adjoiningproperty owned by Dallas and Patricia Dunham.
Purchase Bob Bruss reports online.
Not long before the Aarons’ property purchase, the Dunhamsbegan to limit use of the road. Evidence shows the road was created in 1982 byTexaco, which used it to reach nearby leased property.
The prior owners of the Aaron property used the Texaco Roadwithout asking or receiving permission. But in 1999 the Dunhams wrote a letterto the prior owners, the Fullertons, revoking permission to use the road. TheAarons were aware of the dispute when they bought their home in 2000.
Shortly after purchase, the Aarons brought this declaratoryrelief lawsuit against the Dunhams, claiming a prescriptive easement tocontinue using the private Texaco Road over the Dunham land. They argued theprevious owners’ use of the road was adverse, open, notorious and continuouswithout permission of the property owners, so a prescriptive easement wasthereby created.
If you were the judge would you rule the Aarons have aprescriptive easement to continue using the Texaco Road?
The judge said yes!
To create a prescriptive easement, the judge began, thenonpermissive use must be adverse, open, notorious and continuous for the timeperiod specified by state law. The evidence shows the use by the previousowners of the Aaron property was without the express permission of the Dunhams,he added.
If the past use had been permissive, that permission couldbe revoked and there could be no prescriptive easement created because therewas no adverse or hostile use, he commented.
But the evidence shows the Aarons and the previous ownersused the Texaco Road over the Dunham property without express permission formany years, the judge emphasized.
Because they have another route, although inconvenient, toreach their property from the public road, the Aarons are not entitled to aneasement by necessity, he noted. However, they have proven all the elements andare therefore entitled to be granted a prescriptive easement to use Texaco Roadacross the Dunham property, the judge ruled.
Based on the 2006 California Court of Appeal decision in Aaronv. Dunham, 41 Cal.Rptr.3d 32.
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Copyright 2006 Inman News