A California Court of Appeal recently held that a plaintiff seeking to establish a prescriptive easement need only meet the preponderance of the evidence standard, not the also-used clear and convincing standard.
In Montecito Country Club, LLC v. Root, plaintiff Montecito Country Club, LLC operated the Montecito Club, a Santa Barbara country club with an 18-hole golf course. The Roots bought a house immediately north of two holes of that golf course in 2015. The Country Club owned an express easement by deed for a cart path and greenskeeper truck purposes along the southern part of the Roots’ property.
The Country Club redesigned the golf course at about the same time the Roots bought their home and routed the cart path away from their backyard and planted vegetation around the same two holes. A large oleander hedge and chain link fence separated the Roots’ backyard from the cart path and golf course.
The Roots were not aware of the easement when they bought their home, but discovered the express easement’s existence in 2017 after discussing with the Country Club trimming the overgrown hedge on the easement.
The Country Club and the Roots had a dispute as to the location of the hedge, but the County Club refused to move it, even though it extended beyond the location of the express easement. The dispute expanded to the Roots building a four-foot retaining wall and raised the easement area to grade with 400 cubic yards of dirt.
The Country Club sued to quiet title with respect to both the express easement and a prescriptive easement “for the purpose of planting and maintaining a boundary hedge, installing landscaping and hardscaping, and those other uses. . . .” The Country Club sought declaratory relief and an injunction ordering the Roots to remove the retaining wall, fence, and other encroachments from the easement area.
The trial court entered judgment:
finding the recorded easement was valid and was “expanded by historical usage to encompass the maintenance of a boundary hedgerow” and “to permit accessory landscaping on the Easement Area not otherwise used for cart path purposes.” The judgment directs the Roots to “immediately commence the process of removing the Encroachments from the Easement Area and restoring the Easement Area to the condition that existed on September 8, 2020 . . . .” It prohibits the Roots from “unreasonably interfering” with the easement going forward.
In their defense, the Roots had argued that the easement had been abandoned. In order to constitute an abandonment of an easement, “there must be a nonuser accompanied by unequivocal and decisive acts on the part of the [dominant tenant], clearly showing an intention to abandon.” The intent must be “not to make in the future the uses authorized by it.”
The Court of Appeal held that the party “asserting abandonment of an existing easement has the burden of proof.” Here, the Court rejected the Roots’ argument that the trial court had failed to make necessary findings about the easement’s purpose and scope. The Court held that the deed establishing the easement “cannot state the easement’s purpose and scope more plainly: it is ‘for cart path and greenskeeper truck purposes.’” The Court held that the trial court had rejected the Roots’ theory that the Club’s historical uses narrowed or limited the deed’s express grant.
With respect to the Roots’ argument that the trial court erroneously expanded the express easement by “rights by prescription,” the Court of Appeal again rejected their argument. A prescriptive easement “may be acquired by open, notorious, continuance, adverse use, under claim of right, for a period of five years.” Adverse means the use is made without the landowner’s explicit or implicit permission. And the burden of proof is on the party asserting the prescriptive easement.
The Court of Appeal recognized that there is a split of authority on the standard of proof required to establish a prescriptive easement, explaining that this Court previously required that the party seeking a prescriptive easement must establish that right by clear and convincing evidence. However, the Court changed that standard, and concluded that the “correct standard is preponderance of the evidence.”
Utilizing that standard of proof, the Court of Appeal concluded that the evidence was sufficient to support the inferences necessary to establish the elements of a prescriptive easement. The Court held that “continuous use of an easement over a long period of time without the landowner’s interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it will be sufficient to sustain a judgment.”
Until the California Supreme Court weighs in, there will continue to be a split of authority as other appellate decisions within the state, such as Grant v. Ratliff (2008) 164 Cal.App.4th 1304, have held that the standard is clear and convincing evidence, which conflicts with the Montecito Country Club decision discussed.
