Hostility and Notice in Prescription Cases

Roger Bernhardt


In Vieira Enters., Inc. v McCoy (2016) 8 CA5th 1057, Vieira had acquired a parcel of land in 1996 whose legal western boundary was Rosedale Avenue—a private road. The parcel on the east side of the road was owned by McCoy. Both Vieira’s and McCoy’s lots had 20-foot rights-of-way over the 40-foot-wide road. However, a fence and gate made the road appear to be situated entirely on Vieira’s parcel and appeared to fence out McCoy from using it, as Vieira’s seller had (mistakenly) told Vieira was the case.

Vieira’s boundary misunderstanding did not matter until around 2009, when Vieira wanted to improve its land and demolish the fence/gate, because no one—neither Vieira nor McCoy nor the other neighbors—had previously minded the privacy that the fence afforded to everyone. But when Vieira did attempt to move the fence to its true location, McCoy filed suit to assert rights-of-way over the road, and Vieira responded with the contention that McCoy’s rights had been extinguished by acts of prescription over the years. (A far more complete description of the facts appears at p 61.)

The trial court and court of appeal rejected Vieira’s prescription claims on the ground that they lacked sufficient hostility, in an overlong but useful opinion that provided interesting commentary on that doctrine, which I want to explore in this column.

Adverse Possession and Prescription

Attorneys are familiar with adverse possession, that often being the first (and most shocking) topic forced down their throats as law students in first year Property courses, where they learn that what they probably had previously regarded as land theft was justified when it was, e.g., open and notorious, continuous, exclusive, or hostile for a long enough time (5 years in California, though usually longer out east). That theme of prescription, especially when combined with the rules of feudal estates and future interests in land, was often enough to make Property their most unpopular course in law school (until they graduated and begin practicing law, when they discovered that the doctrine of adverse possession allowed their clients to purchase property without also having to pay to have its boundaries surveyed, because it meant that what they saw was probably what they got, even if there were problems with legal descriptions).

This doctrine of prescription often got even more painful in law school when easements (“incorporeal interests”) were taken up, and then it reraised its head in the form of acquisition and creation by adverse use (prescription), when judges—often because there are usually no statutes on adverse use comparable to adverse possession—are forced to invent fictions such as the “lost grant theory” (that there probably once was a deed creating the easement that had since gotten lost) to justify their outcomes.

Then, to cap it all off, these pained law students were forced to master the doctrine that easements—whether created by prescription or otherwise (e.g., by grant or implication)—can be extinguished by the adverse possession claims of their neighboring (usually servient) tenants. Because of the fuzzy parameters of these rules, it is often easy to mix them up.

Vieira’s Claim

Since Rosedale Road was the common boundary between Vieira’s and McCoy’s parcels and was subject to reciprocal express rights-of-way, Vieira did not need to claim either adverse possession of that strip of land or right-of-way by prescription over it. (Apparently, it did not have any practical need to use that road.) What Vieira wanted, instead, was to be able to claim that McCoy had lost the right-of-way that he (and his predecessors) had previously held over that part of the road that belonged to Vieira; i.e., Viera wanted to use the doctrine defensively to deprive McCoy of his existing property rights, rather than acquire new rights in it (although technically it could be said that an owner who successfully extinguishes his neighbor’s former easement in his land has thereby acquired the new entitlement of being able to stop that neighbor from being able to use that land any longer).

Had McCoy’s right-of-way been originally acquired by prescription, then, at least in California (and a few other jurisdictions), McCoy’s mere nonuse of Rosedale Road might have been sufficient to extinguish his right-of-way in it, because CC §811(4) provides that an easement may be lost by “disuse thereof by the owner of the servitude for the period prescribed for acquiring title by enjoyment.” But the description of this type of statutory extinguishment is prefaced by the phrase “When the servitude was acquired by enjoyment,” meaning that this kind of termination works only on a prescriptive easement. Because McCoy’s right-of-way had been acquired by an express reservation (in the earlier deed to Vieira’s predecessor, and then later implicitly transferred to Vieira), it was not subject to loss from nonuse in this manner. (Academically, this is an odd doctrine, since a prescriptive easement is, in all other respects, the same as an express or implied easement, and there is no real explanation of why the manner of an easement’s creation should control its termination—titles acquired by adverse possession are not differently lost from those created by grant or inheritance. But one doesn’t get to argue with the legislature [60] as to why it wrote this special rule, especially when it does have a sort of intuitive common-sense appeal.) In any event, nonuse by McCoy did not mean that he had, ipso facto, lost his easement; Vieira had to show more than that to make a claim of extinguishment.

Terminating McCoy’s Right-of-Way

In addition to nonuse of a prescriptive easement, California’s CC §811 lists three other ways to extinguish a servitude:

·      Merger;

·      Destruction of the servient tenement; and

·      Performance of incompatible acts.

McCoy’s right-of-way had clearly not been destroyed by merger or by destruction of the servient tenement—two of the remaining three statutory grounds. Vieira perhaps could have claimed termination by the performance of incompatible acts (by either party), but never made such a contention (often treated as one of abandonment or waiver). This left Vieira with only the possibility of contending that McCoy’s right-of-way had been extinguished by adverse possession of the road by Vieira.

Adverse possession is not a ground listed in the statutes for extinguishing an easement, but it is universally acknowledged to have that effect. The statutory requirement that a record owner have been “seized or possessed of the premises in question within five years before the commencement” of his or her action (CCP §319) means that a “disseizor” must have dispossessed the owner more than five years ago, and a dispossession that qualifies must inevitably have entailed what a judge or jury would consider as a full possession of the property, extinguishing all conflicting possessory rights, as well as all incidental rights of the former owner. See CCP §§322–323. A successful adverse possessor has not only possessed the subject property, but has also dispossessed all rivals, including having stopped former owners from walking over it any longer.

The two consequences (here, of adversely possessing the road and prescriptively excluding McCoy from using it) sometimes overlap: Proof of adverse possession often also proves prescriptive extinguishment. But not always—in this case, Vieira could be said to have actually possessed the road without at the same time having prescriptively extinguished McCoy’s right-of-way in it. Notice to the competing party is normally irrelevant in adverse possession cases, but in certain instances it can play a role, as it did here.

The trial court found that “Vieira’s use was not sufficient to put McCoy ... on notice of Vieira’s claim” because nothing had really changed, i.e., everybody just kept doing what they had previously wanted to do. McCoy found it convenient to have his right-of-way fenced off (and it is hard for one neighbor to be adverse to another when that other keeps surrendering). (On the other hand, Mr. Vieira probably shot himself in the foot when he testified “I never know [sic] Mr. McCoy owns an easement. I thought I owned the whole 40 foot wide. How could I give him the notice?”)

Notoriety Versus Notice

In general, the requirement that an adverse possessor be “open and notorious” replaces any need to show that the competing record owner had “notice” of that possession. Because of this logic, owners need to check the status of their properties at least once every five years, rather than expecting possessors to give notice to them that they are in possession—of properties that they probably believe they truly own. But in special cases, like when a possession has started off permissively—i.e., nonadversely—and only later turned adverse, then we do add in a notice requirement (often referring to it as an “ouster”). The same trespassory acts that might otherwise have been sufficient are no longer enough without a showing that something special was communicated to the owner. Vieira needed to prove such a timely ouster here and did not succeed at it, even though the fence completely isolated McCoy from his road; Viera knew that the fence put it in sole possession of the road, but was Viera also informed that the fence now manifested a claim by Vieira of full ownership of the road?

For the trial court, the hostility and notice requirements were treated as but one. (Vieira’s use was found to be not “sufficiently hostile ... to put McCoy on notice of Vieira’s claim.”) But the court of appeal recognized these elements as somewhat distinct (8 CA5th at 1078):

To establish hostility for adverse possession “there need not be open aggression or combat, neither need a notice to the owner be given other than the–claimant’s occupancy.” [citation omitted.] On the other hand, “[t]o extinguish an easement by adverse user the use ‘must either interfere with a use under the easement or have such an appearance of permanency as to create a risk of the development of doubt as to the continued existence of the easement.’”

(The court also added: “Moreover, ‘(a)n easement cannot be acquired or extinguished by adverse use unless the party whose rights are affected thereby has knowledge of the adverse nature of such use.’” 8 CA5th at 1078. I treat this assertion as more dubious, since I am not that sure about its validity in acquisition cases.)

Why is the hostility burden requirement in prescription cases made higher by adding that it must be known by the other side? Because a dominant tenant’s lawful use of his easement is technically permissive activity; it never on its own ripens into greater rights over time. Some sort of ouster by the dominant tenant is therefore needed for that activity to become adverse and start the clock running. Just walking on your neighbor’s road is not enough; you must also carry a sign.

Getting the Theory Straight at Trial

Vieira lost its claim of extinguishing McCoy’s right-of-way prescriptively because it was not hostile enough (or, more accurately, that it did not give notice to McCoy of the [61] hostility of its claim). As for the rest of us, we all should appreciate that when our clients claim to have been adverse possessors of adjacent property, they may need to show not only their own possession of it, but also—in the right cases—that their neighbor knew their possession was sufficiently “hostile,” whether or not they all got along.


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40 Real Property Law Reporter 59 (Cal CEB May 2017), © The Regents of the University of California, reprinted with permission of CEB.