A little history provides the key
Boundary disputes are common in Nevada County due, in part, to uncertain boundaries created during our mining and agricultural history. They may be common, too, because some rules regarding property lines don’t make sense without a little history to explain them. For example, I observed in a previous “Other Voices” column that it is not a good idea to assume that a fence is on the property line. To be complete, though, it is also a bad idea to assume that a fence is not a boundary, even when a survey shows otherwise!
This surprising statement can be explained only with a little history. Property law is very old. Changing property law can redistribute property, something lawmakers have been reluctant to do over the centuries. For example, if the rule that owners of property adjacent to streams may take stream water equally with other stream-side property owners were changed to give priority to upstream owners, that change would shift water rights from downstream owners to upstream owners. Most other changes would have similar effect. As a result, property law has changed very little since the beginning of our legal system in medieval England – a very different society from ours with very different problems and expectations.
One of the problems of “the Dark Ages” was the need to keep land in production, growing food, even though the black plague had killed peasants by the thousands and made agricultural labor scarce. Two legal doctrines developed in that time which returned land to production when the owners (who might be dead) could not be found. Under doctrines of “adverse possession” and “prescription,” a person who used someone else’s land could become its owner. In our day, this seems like rewarding trespassers and a very bad idea. However, to medieval lords and city dwellers (like judges), it seemed a very good idea to have someone grow the food you ate!
To establish title by adverse possession, a user of property must do so hostilely to the owner, that is, without permission; openly; exclusively, that is, no one else uses the land; and continuously for five years. The idea was that if you visibly acted like an owner and no one challenged your right to do so, they probably weren’t coming back, and you had earned the right to keep making productive use of the land.
California adds the modern requirement that the adverse possessor must pay the taxes for five years, as well. This has some history, too. The tax requirement was added during the 1800s when the Southern Pacific Railroad controlled the California Legislature. Southern Pacific could not police all its lands in California, but it could track the County tax collectors and make sure it kept title to its land. As a result of this tax requirement, adverse possession is now rare in California.
Prescription is more common. It involves something less than ownership of land – the right to use a road, maintain a fence, or some other use of property. To obtain an easement by prescription, you do not need to show exclusive use (it can be a shared access easement) or pay taxes. Thus, if a fence line or common driveway has remained in place for five years before a survey reveals that it is in the wrong place, the person benefited by the easement may very well have a right to keep using it even though it is on a neighbor’s land.
A modern lesson can be taken from this ancient law. If you notice an encroachment on your land and cannot persuade the encroacher to remove it, there is an alternative to suing them: Issue them a license! If you give them written permission to use your land, but make clear that it is your land and that you reserve the right to revoke the permission, they can’t show they’re using your land without permission. Without that, they cannot establish prescription. You can give permission in a very friendly way to preserve a cordial relationship with your neighbor while still protecting your property rights.
It is best to act before an encroachment has been in place for five years. However, it may be useful to issue a license even after five years have run. If the encroacher does not challenge your right to grant the license, this will support the view that they never intended to use the land without permission and therefore do not qualify for prescription.
Thus, a little bit of history and a practical tip can help make ancient law make modern sense.
Michael Colantuono is a local government lawyer who lives in Penn Valley.
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