California real estate and deed of trust disputes | courtroom war stories and lessons learned

Adverse Possession of an Easement: Mistakes, Gates, and Fences

Just as fee title to real property can be lost by adverse possession, the same is true with easements.

In a recent opinion from California’s Sixth District Court of Appeal — Vieira Enterprises, Inc. v. McCoy — the court addressed the claimed termination of a neighbor’s recorded right of way easement by adverse possession.


Vieira Enterprises, Inc. acquired a mobile home park in the City of Capitola in 1996.  Deeds recorded in the late 1940s provided for a 40-foot wide right of way on the boundary (20 feet on each side) of the property between Vieira and its neighbor, McCoy, who had owned his property since 1994.

At some point before either party owned the property, a portion of the right of way had been fenced in by wire fences and a wire gate.

In 2009, McCoy notified his neighbors that he was beginning a project to construct a light commercial building, and the project that would involve removal of the fencing and gate.

Vieira sued to quiet title to his property near the boundary, alleging that its adverse possession terminated McCoy’s right of way easement.  The trial court ruled in favor of McCoy, and Vieira appealed.

The Court of Appeal’s Opinion

In a wide-ranging opinion affirming the trial court’s judgment, several rulings by the Court of Appeal stand out:

The Elements of Adverse Possession of an Easement

The elements that a plaintiff needs to prove to terminate a neighbor’s easement are similar to the elements of adverse possession with respect to fee title, with one exception.

The normal elements for adverse possession with respect to fee title are:

  1. Possession must be by actual occupation under circumstances giving reasonable notice to the owner.
  2. Possession must be hostile to the owner’s title.
  3. The plaintiff must claim the property as his own under either color of title or claim of right.
  4. Possession must be continuous and uninterrupted for five years.
  5. The plaintiff must pay all the taxes levied and assessed on the property during the period of possession.

For adverse possession of an easement, the elements are the same except the plaintiff need not pay taxes (unless the easement has been separately assessed).

Adverse Possession of an Easement Can be Based on a Mistake

The Court of Appeal held that adverse possession of an easement can be based on a mistake.

Here, Vieira argued that it was unaware of McCoy’s easement rights until shortly before filing the lawsuit.  Just as a mistaken occupancy can lead to adverse possession of a fee title interest, the same is true of an easement.

Thus, the court held that “hostility” could be proven by the occupation of land that is subject to an easement under the mistaken belief that the easement lies elsewhere (or, perhaps, that the easement doesn’t exist at all).

Gates and Fences Might Establish Adverse Possession of an Easement

The court noted that to establish “hostility” for adverse possession, “there need not be open aggression or combat, neither need a notice to the owner be given other than the claimant’s occupancy.”

But, the court held, the adverse use must either interfere with a use under the easement or have the appearance of permanency so as to raise doubts about the easement’s continued existence.  The defendant must have some knowledge — actual or constructive — of the adverse nature of the plaintiff’s use.

Depending on the circumstances, the erection of a gate and fencing might satisfy the “hostility” element.  Here, it did not.

The court observed that if the evidence had shown that McCoy regularly used the right of way until Vieira erected a gate and fencing without his permission, hostility might be established.  But here, the evidence suggested that McCoy’s (not Vieira’s) predecessor had erected the gate and fencing to prevent access by the mobile home residents and general public, and the fencing therefore provided mutual benefit to the neighboring properties.

McCoy never needed to use the right of way easement, because his existing commercial building was on a separate part of his property that had alternative means of access.  Until McCoy actually wanted to make use of the right of way during his construction project in 2009, there was no reason for him to object to the gate or fencing.

The court held: “Keeping the general public off a private road does not necessarily amount to ousting the neighbors of their rights of way.”

Permanent Structures Might Establish Adverse Possession of an Easement

Finally, the court noted that the non-permissive erection and maintenance of permanent structures (like buildings) that obstruct and prevent the use of the easement can operate to extinguish the easement.

Here, Vieira argued that encroachments of two mobile homes into a portion of McCoy’s right of way (by about 7 feet) supported the termination of the easement.

The court disagreed, because the two mobile homes in question had been located in the same place since before either party purchased the property, and Vieira failed to offer evidence proving that the minor encroachments by the two mobile homes occurred without the permission of McCoy’s predecessor.


Easements — even recorded ones — can be lost by adverse possession.  Satisfying the elements will depend entirely on the unique facts of the case.  The Vieira Enterprises opinion lays out some helpful ground rules.