Legal Question in Real Estate Law in California

As to the trench, a neighbor is not allowed to redirect the natural flow of a sizeable flow of water from their property onto other's property. If the trench is man made, you have the right to tell him to stop the harmful flow or you will sue him in Small Claims Court every year for the damages caused [trespass, nuisance]. If the trench is a natural characteristic of the land, he is not required to alter it or pay for any damages to you, as you supposedly bought your property knowing about the condition.

To create a prescriptive easement across his property you must use the land for ten years in an open, hostile fashion. The bank must not have directly or indirectly granted you permission to use the land and it must have had notice of the hostile usage [a well worn path through the field might be enough]. The problem is that the bank probably would not care if you used the property and the current landowner certainly has objected. Whether he has acted to prevent the easement is in question. You likely do have an easement, but you will not stop him form yelling until you go to superior Court to get an order as to that [even then he will complain]. You could pay a few hundred dollars to an attorney to write him a letter showing that you have an easement and then keep a copy of that letter on you when he calls the police to arrest you for trespass -- is it worth the trouble?

You have two issues. I agree with Mr. Shers as to the second issue, as he is not permitted to redirect drainage onto your property.

The first issue, is different. When you cross another;s land, it is a trespass. There is an issue as to whether you have a prescriptive easement, but I doubt it would have arisen against the bank. You need five years of open and notorious, hostile use to create a prescriptive easement. And unlike what Mr. Shers said, you do not have an automatic easement, but rather would have to have the court agree with your position and quiet title to a prescriptive easement.

You may need to discuss these issues in more detail with a competent attorney, before flying off and starting a neighbor dispute that is going to cost you a lot of money in the long run.

Well we are all in agreement about the water. If it flows onto your land because of a man-made alteration to the land, it is illegal. If it is naturally occurring, you have no rights.

As for the easement issue, both Shers and Roach are half right. A prescriptive easement only takes 5 years. Open and notorious use that is contrary to the land owner's rights is enough for the hostility element. The fact that the bank didn't care is irrelevant. Unless the use is expressly permitted, it is adverse and hostile. If just ignoring it were enough to counter the "open, notorious and hostile" element, then there could pretty much never be a presecriptive easement. Prescriptive easements arise exactly BECAUSE the land owner at the time doesn't care enough to do something about it. The whole point of the doctrine is that if you make use of someone else's property and they don't bother to stop you, the law will eventually award an interest in the property to the person who is making use of it over someone who has title but makes no use of the property, because it is in the public interest for land to be used.

I go back to agreeing with my colleagues, however, on the issue of whether you really want to make a legal fight of this. It sounds like you have a good shot at winning a lawsuit to establish an easement, but at what cost? Would it really be worth it?

Well, I am not in agreement about the redirected water. The crabby old man probably has a prescriptive right to discharge the water, just as you have a prescriptive easement to walk your dog across his lot. You might sue for unreasonable concentrated discharge of surface waters (as that cause of action is defined in the decision of the California Supreme Court in Keys v. Romley (1966) 64 Cal.2d 396; but prescriptive easement for the discharge is a solid defense, since it has evidently been going on for over five years. The prescriptive easement concept cuts two ways. If the water discharge becomes an issue, contact me for some details.