Legal Question in Real Estate Law in California
Claim for prescriptive easement?
The children in the neighborhood have been using an
empty lot (to small to build on) as a playground and
school bus stop (there are no sidewalks in neighborhood)for over 30 years. this property was fenced once for a two week period. Since a sewer
system is currently being installed the property was
purchased to build on. Any chance for prescriptive easement, or did the short term fence kill that?
1 Answer from Attorneys
Re: Claim for prescriptive easement?
To start, prescriptive easements are usually acquired by unauthorized ("hostile") use by a particular party or a readily-identified group of parties. Accordingly, it is relatively difficult for the public as a whole, or a large segment of the public such as "the children of the Jones School District" to obtain a prescrptive easement.
In California, at least one case holds that the public cannot acquire an easement by prescription, but can acquire an easement for right-of-way by implied dedication. Smith v. Kraintz (1962) 201 Cal.App.2d 696 at page 701.
This case has not been overruled or questioned, and thus seems to reflect the current state of the law in California. If you or any group of concerned citizens decides to pursue the matter, get an attorney and have her or him compare the circumstances in your situation with those in the Kraintz case and any other more modern cases that cite Kraintz. I think you have a fair chance of winning or at least getting a settlement that preserves some rights for the kids.
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