A Prescriptive Easement Can Expand the Scope of an Existing Granted Easement

by Wendel, Rosen, Black & Dean LLP

There are several ways to acquire an access easement over the property of another.

The simplest method is by an express written grant from the owner of the burdened property (on which the easement exists) to the owner of the benefitted property.

A more controversial method (one that usually involves litigation) is an easement by prescription, which involves acquiring an easement by “adverse” possession or use.  To establish a prescriptive easement, a party must show use of the property which has been open, notorious, continuous, and adverse for an uninterrupted period of at least five years.  “Adverse” means wrongful and in defiance of the owner’s property rights.

Can the owner of an express, granted easement expand the scope of the easement by prescription?  An opinion recently published by California’s First Appellate District — McBride v. Smith — addresses the issue.


The Smiths and McBride acquired adjoining properties in the late 1990s and early 2000s.  In 1993, the Smiths’ predecessor had granted an an access easement to McBride’s predecessor consisting of a 12-foot strip of land running along the border of one parcel.

The grant specified the following use: “Grantee or successors may only use the easement created hereby for the purpose of emergency or secondary ingress and egress to a single family residency and not as primary access.

According to the operative complaint filed by McBride, the Smiths obstructed the granted easement by installing wood dividers, erecting a heavy chain and large pole, and had installed footings to begin the construction of a fence.  McBride’s complaint also alleged that before these encroachments were installed, she and her predecessors had used the easement for “primary access” purposes daily for at least five years in an open and notorious manner, thereby expanding the scope of the granted easement for “emergency or secondary” access.

The trial court’s ruling

The Smiths filed a demurrer challenging the adequacy of the complaint, and the trial court sustained the demurrer without leave to amend and dismissed the case.

The trial court held that McBride’s allegation of “daily use” was insufficient to show any prescriptive rights because the express recorded easement did not prohibit daily use as long as it wasn’t the “primary” access route.

McBride appealed.

The court of appeal’s opinion

The court of appeal reversed the trial court’s judgment as to the prescriptive easement claim, holding that McBride had adequately alleged her claim.

The court first clarified that the existence of a granted easement “does not preclude the acquisition of greater rights by prescription.”  Thus, to state a claim for a prescriptive easement for “primary access” over the same strip of land encumbered by the granted “secondary/emergency access” easement, McBride would simply need to allege that she used the granted easement in a way that violated its terms, openly and notoriously, for at least five years.

McBride’s complaint, the court held, accomplished this.  The complaint alleged that she used the granted easement for “primary access,” which exceeded the uses authorized by the terms of the granted easement.  The complaint also alleged that such use for primary access occurred on a “daily basis” for at least five years.

The court held:

These allegations are sufficient to support a cause of action for a prescriptive easement based on the theory that McBride’s daily and primary use of the easement significantly expanded the use allowed under the terms of the 1993 recorded grant.  Thus, the trial court erred by sustaining the demurrers to this cause of action.


A prescriptive easement theory can be used not only to obtain an easement where none existed before, but also to expand the scope of an existing granted easement.

[View source.]

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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