ARNOLD, BLEUEL, LAROCHELLE, MATHEWS & ZIRBEL, LLP
OBTAINING A PRESCRIPTIVE EASEMENT
We live in a largely rural community. Although most of us probably reside in established
subdivisions and residential tracts, there are large portions of Ventura County which contain
agricultural and undeveloped land. Property owners in these areas do not always have easy
access to their properties over public roads and, instead, rely on dirt or private roads providing
questionable access. Wheneve r there are no obvious public roads to gain access to a property,
questions invariably arise whether the people using a dirt, country or farm road actually have the
right to traverse the road.
The concept of prescriptive easements was adopted by the Legislature and courts to deal
with the rights of people using a private road for years, if not decades, to continue their use. If
the elements giving rise to a prescriptive easement are established, the user of a private road can
obtain a legally enforceable prescriptive easement to use the road. The case of Aaron v. Dunham
(2006 DJDAR 3631) is illustrative of the way in which prescriptive easements arise.
The Aarons purchased a rural lot. The access to the Aarons' lot was over a private road, a
portion of which was owned by the Dunhams. After buying their land, the Aarons sued to
establish a prescriptive easement to the private road over the Dunhams' property.
In order to prevail on a claim for prescriptive easement, the Aarons had to show that their
use of the road, or the use by their predecessors- in-interest, had been open, notorious, continuous
and adverse for an uninterrupted period of 5 years. The prior owners of the Aaron property
clearly had used the private road for well over 5 years, but some of them had the express
permission to use the road from the Dunhams or their predecessors- in- interest. In addition, an
oil and gas lessee which had been exploring for petroleum on and around the Dunham property
had posted signs under Civil Code Section 1008, which gives an OWNER of property the right
to prevent prescriptive easements by posting a sign at each entrance to the property in question,
and at intervals of no more than 200 feet along the property owner's boundaries stating: "Right
to pass by permission, and subject to control, of owner (Section 1008, Civil Code)." By posting
the signs in this fashion, a property owner grants permission to any users of a private road to pass
and, therefore, the road users cannot prove that such use is "adverse" to the owner, thereby
defeating one of the essential elements to prove a prescriptive easement.
Both the trial court and Court of Appeal examined the evidence presented. First, both
courts found that the permission granted by some of the prior owners of the Dunham property
had lapsed, as subsequent owners never received nor even talked to later owners of the Dunham
property. Thus, the courts found that at least some of the prior owners of the Aaron property had
continuously used the private road in excess of 5 years without permission. Second, the courts
held that the signs posted by the oil and gas company under Civil Code Section 1008 were not
effective because they were posted by a mere lessee of the Dunham property, and not by any of
CVAR\Newsletter\ Memo81 1
the owners of the Dunham property themselves. The courts further rejected the claims that the
oil and gas lessee was authorized or appointed by the owners as their agent to post the signs.
Ultimately, both courts held that Aaron had a prescriptive easement to use the private
road. The Aaron v. Dunham case is a simple example of the types of disputes arising between
adjacent property owners in rural areas over access rights.
CVAR\Newsletter\ Memo80 2