It's Your Obligation to Defend Against A Prescriptive Easement

The recent decision in Connolly v. Trabue (2012) 204 Cal.App.4th 1154, confirms that a property owner must be proactive to take affirmative steps if they want to prevent a prescriptive easement from being established over their property. A frequent topic in real estate litigation is the establishment and use of prescriptive easements. The Connolly case states that a significant delay by the party claiming the easement is not a defense to its establishment.

A prescriptive easement is the right to use another’s real property without their permission. It is acquired by open, notorious, and continuous use of the real property under a claim of right and without the property owner’s permission for a term of five (5) years. Once a party satisfies the above criteria, a prescriptive easement is established by operation of law, and the burden shifts to the property owner. If a property owner takes no action to stop the use of his or her land during the time period, then a prescriptive easement may be established in favor of the user.

Connolly Decision – Laches is Not a Defense

In December 2003, the owners of real property (the “Connollys”) had two parcels in Garberville, California (southern Humboldt County), on which they raised cattle. The Connollys purchased an adjoining parcel and then resold it subject to an agreement that there would be a lot line adjustment reserving a portion for their original parcels (the “Disputed Area”). The parties failed to apply for the lot line adjustment and the adjoining parcel was resold again to the defendants (“Trabue”). The Trabues’ objected to the Connollys use of the Disputed Area, and the Connollys filed an action asserting, among other claims, a prescriptive easement. While the trial judge held that the Connollys had satisfied all the elements of a prescriptive easement, the judge also held that the Connollys had failed to bring the lawsuit in a timely manner and were barred from establishing the prescriptive easement by the doctrine of laches.

“The doctrine of laches” is an equitable doctrine stating that a legal right or claim will not be enforced or permitted if there is a long delay in asserting the right or claim, such that it has prejudiced the adverse party.

On appeal, the Court reversed and awarded the Connollys a prescriptive easement over the Disputed Area stating that laches does not apply and that as soon as the prescriptive easement ripened, no further action was required by the Connollys.


The Court’s decision confirms that a property owner must be vigilant and proactive in preventing a prescriptive easement from being established over his or her property.

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For questions relating to this article or for assistance with a California land use, boundary, or easement dispute, contact the real estate attorneys at White and Bright..