Garcia Rainey Blank & Bowerbank LLP, Attorneys in Orange County


Partner John Bowerbank Obtains An Important Appellate Court Victory On Behalf Of Client The Regents Of The University of California

May 1, 2015

A unanimous three-member panel of the California Court of Appeals ruled today in favor of Garcia Rainey Blank & Bowerbank client The Regents Of The University of California ("the Regents"). The Court of Appeals affirmed the trial court's sustaining of a demurrer without leave to amend in a case involving the intersection between adverse possession and prescriptive easements.

The plaintiffs sought to quiet title to a prescriptive easement in land owned by the Regents based on an argument that they had enclosed the easement with a fence for the last 15 years and used the easement exclusively thereafter. Because the plaintiffs had not paid applicable property taxes, they could not assert an adverse possession claim. Instead, in their Complaint, they sought a prescriptive easement.

At oral argument, partner John Bowerbank argued that because a prescriptive easement is the right to use the land of another for a specific purpose, it can never be exclusive in this context, because such exclusivity would actually divest the Regents of ownership and be tantamount to adverse possession. As such, Mr. Bowerbank argued that the prescriptive easement claim was nothing more than an adverse possession claim in disguise. The Court of Appeals agreed, finding that "[a]n easement that would divest the owner of the property from entering or making any use of their land is not a prescriptive easement. Such a claim would be more properly pleaded as adverse possession, which requires the payment of taxes, while a prescriptive easement does not."

Mr. Bowerbank said, "The Court sent a strong message that a landowner cannot try to circumvent the rules for obtaining land though adverse possession by mis-labeling the claim as an exclusive prescriptive easement."