Legal Question in Real Estate Law in California

Your question actually involves several somewhat-interrelated legal concepts. I will take them in sequence as they come up in your question.

First, you don't (lierally speaking) pay taxes on an easement. You are probably paying property taxes on the land you own that underlies the easement, but not on the easement itself. If any taxes were being paid on the easement, it would be paid by the utilities benefitted by the easement, but it is very rare for an easement interest to be assessed and taxed.

Next, the mis-placement of the fence is a separate issue from the easement. If the fence is in the wrong place, it is in the wrong place, and the easement has nothing to do with it, except for the possibility that someone in the distant past mis-read a plot map and mistook the easement boundary for the property line. For purposes of this question, it is probably better to forget the easement and just think of it as five feet of your property that's being encroached upon.

Next, as to self-help to correct an encroachment. No, you can't take down the fence without a court order. There are a few kinds of trespasses where self-help is permissible, such as trimming encroaching tree limbs, but removing fences is not one of them. You'll either need to negotiate a deal with the neighbor, or take him to court for a continuing trespass to real property.

Further, a question may arise as to whether the neighbor has acquired some kind of easement for the fence. The answer is probably not. The theory of prescriptive easement won't work for the neighbor, because recent court holdings have swung to the view that a fence so restricts use of the land that it amounts to a taking of the fee, and the requirements for adverse possession must be met, not merely those for a prescriptive easement. This is where your payment of the taxes comes into play. Adverse possession requires payment of the property taxes, which here you, not the neighbor, are PROBABLY doing. The reason I say "probably" is that most property taxes are assessed based upon recorded property descriptions, not the visual impressions of an appraiser. If the latter were the case, you would NOT be paying the taxes on the five feet, because the appraiser would have thought that five feet belonged to the neighbor and appraised your parcel accordingly (lower).

Also, there is a concept of "equitable easement" or "easement by estoppel" which might be asserted by the neighbor. He would tell the judge he should be allowed to keep his fence where it is because (blah, blah) the land wasn't all that valuable and it cost him a lot of money to rebuild it and you should have stopped him before he spent the money if you knew the location was wrong, etc. This shouldn't work, either. I once had a client in your neighbor's position who built the fence 6 inches off the tru peoperty line, and the judge made him move it even though it was a trivial trespass compared with the cost of the fence.

Finally, there is an old theory called "agreed boundary" where if Farmer X and Farmer Y have believed for years that the true property line ran seven feet to the west of the old oak tree, when in fact it runs three feet to the east, the line will be enforced according to the old understanding. Agreed boundary is a semi-obsolete theory and is rarely if ever applied in modern urban settings with clear deed descriptions of the parcels.

So, in sum, I think you have a good to excellent case in court if you are represented by an attorney with some background in urban boundary disputes, but you can't resort to self help outsude of trying to negotiate a settlement.