Legal Question in Real Estate Law in California

Re: Re-claim easement by prescription

You can obtain an easement by prescription, but one that is recorded cannot be taken away by prescription simply by threats. Has he put up a barrier to prevent people from using it. Also, what is the easement for? Lots of questions need to be answered.

Re: Re-claim easement by prescription

A letter would not normally stay the running of the statute of limitations (limitations of actions). Physically using the easement would. This is intended to suppliment the prior answer only.

Re: Re-claim easement by prescription

First, I would like to clarify your understanding of the terms 'dominant tenement' and 'servient tenement' in easement law. The dominant tenement is the land benefitted by the easement. The servient tenement is the land burdened by the easement. See Civil Code section 803.

"An easement obtained by grant cannot be lost by mere nonuse...... However, it may be lost by prescription or adverse possession, and in such a case, nonuse may be considered as a factor in accomplishing the extinguishment by adverse possession." Masin v. LaMarche (1982) 136 Cal.App.3d 687, 693.

The effects of the 'hostile action' and 'written protest' referred to in your question depend entirely on their nature. If the 'hostile action' was to erect a physical barricade so the easement couldn't be used, that is favorable to the beneficiary of the easement, but if the 'hostile action' was a suit to clear title, that is very unfavorable, especially if the response was only a 'written protest' and not an answer and formal defense to the suit.

So, much depends upon matters not adequately explained in your question. If you would like to pursue this further, please contact me.