By Cori Badgley

In the area of prescriptive easements, courts and practitioners have been challenged by the issue of who has the burden to prove “adverse use.” “The elements necessary to establish an easement by prescription are open and notorious use of another’s land, which use is continuous and uninterrupted for five years and adverse to the land’s owner.” Some courts have held that by providing evidence that the use is open, notorious and continuous, a presumption arises that the use is also adverse, and therefore, the defendants, and not the plaintiffs, must prove that the use is not adverse. The Court of Appeal, Second Appellate District in Grant v. Ratliff (July 16, 2008) 2008 Cal.App.Lexis 1063, disagreed with these courts and held along with the other California courts that even if the plaintiff provides evidence of open, notorious and continuous use, the plaintiff still bears the burden of producing evidence to show that the use was adverse. The burden does not shift to the defendant.

In arguing in favor of the presumption, the plaintiffs in Grant relied on the California Supreme Court’s opinion in Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, in which the Supreme Court stated:

We agree with the view, supported by numerous authorities, 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.

At first glance, this statement would appear definitive on the issue of the presumption of adverse use. However, in an earlier decision, the California Supreme Court spent two paragraphs in its opinion on O’Banion v. Borba (1948) 32 Cal.2d 145 discussing why no presumption of adverse use existed. According to the Supreme Court in O’Banion, the inquiry is “whether the circumstances proven do or do not justify an inference showing the required elements.” The court emphasized that facts of open, notorious and continuous use could justify an inference of adverse use, but the burden still lies on the plaintiff to provide sufficient facts to make that inference.

The appellate court in the Grant case closely evaluated both Warsaw and O’Banion and found that O’Banion was the controlling case. The court pointed out that Warsaw never explicitly overruled O’Banion, and Warsaw did not focus on the issue of whether a presumption arises that shifts the burden to the defendant to prove adverse use. According to the appellate court, the one statement in Warsaw referring to the presumption was mere dicta, and its use of the word “presumptive” may have merely described the inference discussed by the court in O’Banion.

Because O’Banion had not been overruled and O’Banion had clearly addressed the exact issue of whether a presumption arises when the plaintiff produced evidence of open, notorious and continuous use, the appellate court held that no presumption arises and the burden still lies on the plaintiff to prove all elements of a prescriptive easement. 

Cori Badgley is an associate with Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, environmental and planning issues contact Abbott & Kindermann 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.