stating that “the line of travel over a roadway which is claimed by prescription . . . must be certain and definite,” but that “slight deviations from the accustomed route will not defeat an easement” (quotation simplified)
How later courts described this case
- stating that “the line of travel over a roadway which is claimed by prescription . . . must be certain and definite,” but that “slight deviations from the accustomed route will not defeat an easement” (quotation simplified)
- fact that claimants had tried to buy the parcel at issue or negotiate an express easement didn’t show that use was permissive
Written by the judges who cited it.
The opinion
GRODIN, J., Concurring.
I cannot accept the majority’s attempted justification for the current law of prescriptive easements. How, in today’s urban society, litigation is reduced or the peace is preserved by allowing persons situated as are these plaintiffs to acquire rights in what is concededly the land of another without a cent of payment is beyond my comprehension. I therefore agree entirely with the policy criticisms contained in Justice Reynoso’s dissenting opinion.
I am persuaded, however, that if change is to come to this arcane area of the law it should come through the Legislature rather than through the courts. It is not alone the existence of Civil Code section 1007 which per *577 suades me, for as my dissenting colleague observes that section, adopted in 1872, was early interpreted as merely fixing the time within which a right by prescription may be acquired. But, in 1965 the Legislature modified the harsh application of the prescriptive easement doctrine by adding Civil Code section 1008, which permits a property owner to avoid acquisition of an easement by the simple expedient of posting a sign. 1 Given that modification, and that degree of legislative attention, I would leave the next move to Sacramento. I therefore join in affirming the trial court’s judgment.
Bird, C. J., concurred.
Civil Code section 1008 provides: “No use by any persons or persons, no matter how long continued, of any land, shall ever ripen into an easement by prescription, if the owner of such property posts at each entrance to the property or at intervals of not more than 200 feet along the boundary a sign reading substantially as follows: ‘Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code.’ ”