By William W. Abbott

The case of Brewer v. Murphy (Court of Appeal, Fifth Appellate District, Case No. F051700) involved three riparian owners and a dispute over a spring box and pipeline.  The riparian owners are listed here in order from the lower riparian to the upper riparian: Brewer, Hagg and Murphy/Klein. In 1979, Brewer acquired property in eastern Fresno County. The source of water was a spring box on property owned by Murphy/Klein’s predecessor, located roughly one mile away. When Murphy (and later Klein, who acquired a part interest from Murphy) took title, neither was actually aware of the spring box or pipeline.

Hagg’s property sat between Brewer and Murphy/Klein, and it was crossed by the Brewer waterline. Hagg unilaterally tapped into Brewer’s line, leading to litigation between those two parties.  Brewer obtained a judgment against Hagg, establishing a waterline easement and terminating Hagg’s connection.  While this litigation was pending, Brewer filed an application to appropriate unappropriated water with the State Water Resources Control Board. Eventually, the Board granted the permit, subject to a maximum daily use of 3,000 gpd and an overall 3.2 acre feet per year.

Brewer sought to obtain formal access to the spring box from Murphy/Klein, but no agreement was reached, and the parties ended up in court. The trial court ruled for Brewer, finding that Brewer had a prescriptive easement to the spring box and water line on Murphy/Klein’s property. Murphy/Klein appealed, and the trial court decision was upheld, with the appellate court ruling in favor of Brewer’s prescriptive easement claim.

First, the appellate court ruled that the evidence was sufficient to find that Brewer was a downstream riparian owner, even though the stream did not flow year round to Brewer’s property. As to the prescriptive easement claim, the court found that the water line, while mostly underground, daylighted in limited areas. Additionally, there was evidence that it was visible (if one had occasion to look off the road) as it passed through a road culvert. On the other hand, the spring box was in a remote location, sitting on a ledge and was buried. Murphy/Klein argued that while an easement may exist for the water line, the spring box was a different story. Not so, according to the appellate court who viewed perfection of the pipeline easement as sufficient to also protect Brewer’s claim to the water source. The court held the pipeline put a reasonable person on notice of the existence of the spring box.[1]

The appellate court’s discussion of the hostile and adverse elements of a prescriptive easement are instructive. Citing Gilardi v. Hallam (1981) 30 Cal.3d 317, the court observed that successful prescriptive easements are often predicated upon a mistake of fact by the easement claimant. As long as the claimant does not acknowledge the same interest in the property as the adverse party, then the element of hostility can be established. As an example, hostility was not established in an adverse possession claim for ownership when the claimant occupied the property of the other intending only to claim the true property line. In those circumstances, mistake will not support the element of hostility because there was no intent to use or occupy the other’s property. Prescriptive easements differ from adverse possession for ownership because the claimant can acknowledge the ownership rights of the owner of the burdened parcel, and still argue a right to use the parcel through a prescriptive easement. The claimant acts in a hostile and adverse manner by taking one of the proverbial sticks from the bundle of property rights, namely the right to use. Here, there was ample evidence (letters between the parties) produced at trial to support the lower court’s determination that Brewer asserted his claims in a manner adverse to Murphy/Klein’s claim of full ownership of the real property.

The decision describes clearly the rule on the hostile element of a claim of prescriptive easement, demonstrating that this element can be met in many circumstances. Its holding is not limited to pipeline easements alone. 

William W. Abbott is a partner with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.

The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.

[1] For large parcels including rugged terrain, the challenge is significant.