The California Supreme Court accepted the doctrine of easements implied from prior use in Romero v. Shih, 541 P.3d 1112 (Cal. 2024), and it also clarified the meaning of the “exclusivity” requirement that some states use for prescriptive easements.
Here an owner of two lots built a driveway that intruded on one of the lots. He sold the lot that suffered the encroachment with the buyer having knowledge of the encroachment. They intended to move the border but never got around to it. When the properties changed hands, the question arose whether the encroachment was a continuing trespass. The court held that the doctrine of easements implied from prior use applied, in this case, an easement reserved by the grantor rather than one given to the grantee (an easement by grant). In such cases, the parties’ mistake in setting the borders results in an effective reformation of the deeds to allow a use that existed before separation of the parcels that was visible and permanent and reasonably necessary to enjoyment of the dominant estate.
The servient estate owner argued that the doctrine should not apply when an easement is “exclusive” and argued that it was exclusive in this case since the servient owner could not use the driveway for any reasonable purpose. The court explained that the reasons for the exclusivity requirement do not apply here because the implied easement doctrine is based on the mutual intent of the parties rather than a continuing trespass by one owner on the neighbor’s land.
The court then clarified that the exclusivity requirement in the context of easements does not mean that the record owner has been ousted, as is the case in adverse possession cases. Rather, it just means the right to exclude uses inconsistent with the easement are excluded.