gate on prescriptive easement?

[tombstonesg]

Hello,

I live on a private road (dirt-upcountry) in California, and our parcel maps (surveyor’s notes) reads “50 foot road and public utility easement (PG&E).” However, our title only lists the PG&E easement. As far as I know, this private road is not designated or dedicated for public use (only 1 person uses the road on a daily basis) and it is not a county maintained road. FYI, the road is on the back of our 10 acres forest, and we have no why of monitoring or knowing who is using it.

I have 6 questions:

Can a gate be put on a prescriptive easement of a private road as long as people have access?

The people who are going through our property have only lived there for 4 years; although, the previous owners before them might have been using the road well over 5 years. Would this be considered a prescriptive easement?

How can anyone prove that a private road was not closed off for at least 1 day a year for the last 30 years? I don’t know if the previous owner of my property blocked access.

If a utility company has an easement on a private road that is not gated off once a year, can it still become a prescriptive easement?

Would I be responsible for the plaintiff’s lawyer’s fees and court costs if the neighbors take me to court and “win?”

Is it illegal to place something permanent on an easement? Is a pole considered permanent?

Thank you for your time,
Shawn

 

[seniorjudge]

Since it has never been declared an easement for access, there are no rights for anyone.

This would be a good thing for you to take to a lawyer; you want to make sure that no one gets rights to the easement.

 

[divgradcurl]

Can a gate be put on a prescriptive easement of a private road as long as people have access?

What presciptive easement? All you have in a PG&E easement. Contact PG&E, but in my experience, so long as they can access the easement when they need to, they don't seem to have a problem with fences and gates.

The people who are going through our property have only lived there for 4 years; although, the previous owners before them might have been using the road well over 5 years. Would this be considered a prescriptive easement?

Prescriptive easement is a very hard sell in California -- it's virtually impossible to prevail in court. In any event, such easements do not arise automatically -- you need to inform the users of the "easement" that they are trespassing, and order them to leave the property. If they think they have established an easement, then they can file suit to get a court to order the easement. Until that happens, there is no easement.

But the longer you let this go, the more likely (even though still very unlikely) that they could prevail. Start by putting up "private road -- no trespassing" signs and the like -- and a gate, if PG&E is okay with it.

How can anyone prove that a private road was not closed off for at least 1 day a year for the last 30 years? I don’t know if the previous owner of my property blocked access.

What does this mean?

If a utility company has an easement on a private road that is not gated off once a year, can it still become a prescriptive easement?

In theory, yes. Right now the recorded easement is for PG&E only -- the "prescriptive" easement would be a broader right to access the same strip of land.

Would I be responsible for the plaintiff’s lawyer’s fees and court costs if the neighbors take me to court and “win?”

Very unlikely. Usually requires either a rejected settlement offer by the plaintiffs followed by a win (and the "win" is the same as or smaller than the settlement agreement, see Cal. Civ. Code 998) or bad faith on the part of the parties.

Is it illegal to place something permanent on an easement? Is a pole considered permanent?

You can't burden the easement so that its purpose is frustrated. If you make it so PG&E can't enter, even if they rarely (if ever) do, then that would not be proper.

Start by posting the no trespassing and private road signs, contact PG&E and put up a gate if they are okay with it, and then try and figure out who is using the road, and perhaps notify them specifically that they are trespassing -- and then start calling the cops when you find them trespassing.