May a Claim of Right Be Presumed From Evidence of Long-term Use Without Objection ?
In Clarke v. Clarke (1901) 133 Cal. 667, the court stated:
"It is not sufficient that the claim of right exist only in the mind of the person claiming it. It must in some way be asserted in such manner that the owner may know of the claim. The fact that the owner knew of the travel and occasional use of the property does not even raise a presumption that such use was hostile or under a claim of right. If any party who is allowed by silent permission to pass over the lands of another, nothing being said as to any right being claimed, after five years, without showing that he ever communicated such claim in any way to the owner, can thus gain title by prescription, it would be a blot upon the law." (Id. at p. 670.)
In Fleming v. Howard (1906) 150 Cal. 28, at page 30, , the court said:
"The fact is clearly established that there was an open, visible, continuous, and unmolested use of the way for more than thirty years prior to the beginning of the action. Under these circumstances it will be presumed that the use was under a claim of right and adverse, and a prima facie title by prescription is thereby established." However, in that case, in addition to long-term use, there was evidence that for at least 27 of the 30 years of use, gates had been maintained at both ends of the right-of-way by the party claiming the easement. (Id. at p. 29.) Thus, the court was not required to rely on a presumption of a claim of right.
Forty-two years later, in O'Banion v. Borba (1948) 32 Cal.2d 145, the court expressly eschewed the use of presumptions in establishing a prescriptive easement:
"There has been considerable confusion in the cases involving the acquisition of easements by prescription, concerning the presence or absence of a presumption that the use is under a claim of right adverse to the owner of the servient tenement, and of which he has constructive notice, upon the showing of an open, continuous, notorious and peaceable use for the prescriptive period. Some cases hold that from that showing a presumption arises that the use is under a claim of right adverse to the owner. It has been intimated that the presumption does not arise when the easement is over unenclosed and unimproved property. Other cases hold that there must be specific direct evidence of an adverse claim of right, and in its absence, a presumption of permissive use is indulged. The preferable view is to treat the case the same as any other, that is, the issue is ordinarily one of fact, giving consideration to all the circumstances and the inferences that may be drawn therefrom. The use may be such that the trier of fact is justified in inferring an adverse claim and user and imputing constructive knowledge thereof to the owner. There seems to be no apparent reason for discussing the matter from the standpoint of presumptions. For the trial court the question is whether the circumstances proven do or do not justify an inference showing the required elements." (Id. at pp. 148-149.)
In that case, the court concluded that an inference of a claim of right may reasonably be drawn from evidence that the plaintiffs "have openly maintained, used and kept both easements in condition for their use." (Id. at p. 148.)