14.2 Unwritten Rights: Adverse Possession and Prescription

Domain IV knowledge P asks you to analyze physical evidence that may indicate unwritten rights (adverse possession, prescriptive rights). Independent OpenExamPrep teaching starts from the Code of Civil Procedure text, not from a folklore five-or-seven-year list. The surveyor locates occupation, compares it with record title, and reports what the evidence shows. The surveyor does not issue a new fee title by stamping a map.

Code of Civil Procedure 321–325: the five-year fee statutes

Code of Civil Procedure 321 is the presumption. In every action for the recovery of real property, or the possession thereof, the person establishing a legal title is presumed to have been possessed within the time required by law, and occupation by any other person is deemed to have been under and in subordination to that legal title, unless it appear that the property has been held and possessed adversely to such legal title, for five years before the commencement of the action. Five years is the statute's period. Do not invent a longer clock for out-of-state owners, and do not shorten it because the fence looks old.

Code of Civil Procedure 322 is color of title. When the occupant, or those under whom the occupant claims, entered under a claim of title exclusive of other right, founding that claim upon a written instrument as a conveyance, or upon a decree or judgment, and there has been continued occupation and possession of the property included in that instrument, or of some part of it, under that claim, for five years, the property so included is deemed to have been held adversely — except that when the tract is divided into lots, possession of one lot is not deemed possession of any other lot of the same tract.

Code of Civil Procedure 323 then says what counts as possession under that written-instrument claim: usual cultivation or improvement; a substantial inclosure; use, even if not enclosed, for fuel, fencing timber, pasturage, or the ordinary use of the occupant; and, for a known farm or single lot that is only partly improved, the uncleared or unenclosed remainder is deemed occupied for the same time as the improved part according to the usual course and custom of the adjoining country.

Code of Civil Procedure 324 is the claim-of-right counterpart. Where there has been actual continued occupation under a claim of title, exclusive of any other right, but not founded upon a written instrument, judgment, or decree, the land so actually occupied, and no other, is deemed to have been held adversely. Color of title can constructively cover the described tract (with the lot exception in 322). Claim of right covers the ground the claimant actually occupies.

Code of Civil Procedure 325 has two jobs. Subdivision (a) limits claim-of-right possession to two cases only: (1) protected by a substantial enclosure, or (2) usually cultivated or improved. Subdivision (b) is the tax rule that applies across the code's adverse-possession sections: in no case shall adverse possession be considered established under the provision of any section of this code unless it shall be shown that the land has been occupied and claimed for the period of five years continuously, and the party or persons, their predecessors and grantors, have timely paid all state, county, or municipal taxes that have been levied and assessed upon the land for the period of five years during which the land has been occupied and claimed. Payment of those taxes shall be established by certified records of the county tax collector.

Read 325(b) as written. The period is five years, not a made-up seven. Payment must be timely for the five years of occupation and claim; a later dump of back taxes is not what the current text describes. Proof is certified tax-collector records, not a client's recollection. Predecessors and grantors can tack both occupation and tax payment. Failure to pay the taxes levied on the disputed land is fatal to the fee claim, which is why a neighbor who built over a side line while the record owner kept paying the parcel's taxes rarely walks into court with a completed adverse-possession case.

The California Supreme Court in Gilardi v. Hallam (1981) 30 Cal.3d 317 collected those requirements as tax payment plus open and notorious use or possession that is continuous and uninterrupted, hostile to the true owner, and under a claim of title. Hostility in this setting means a claim against the true owner's title, not a neighborhood feud. Permission from the true owner breaks hostility. A claimant who occupies only to the record line, with no intent to claim the overlap, is not holding that overlap adversely.

Prescription: use rights, not the fee

Civil Code 1007 is the occupancy-to-title sentence and the public-land bar. Occupancy for the period prescribed by the Code of Civil Procedure as sufficient to bar an action for recovery confers a title by prescription sufficient against all, but no possession by any person, firm, or corporation, no matter how long continued, of any land, water, water right, easement, or other property dedicated to a public use by a public utility, or dedicated to or owned by the State or any public entity, shall ever ripen into any title, interest, or right against the owner thereof. You cannot prescribe a path across a city park or a State highway by using it for five years.

A prescriptive easement is a use right, not a new fee. Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564 states the elements as well settled: the party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years, citing Code of Civil Procedure 321. Warsaw does not list tax payment. Treatises note taxes only if the strip is separately assessed. Do not import 325(b)'s tax rule onto every driveway unless the facts show a separate assessment. Continuous use is use as the claimed easement requires; seasonal or occasional use can suffice when that is how the right would actually be used. Secret use is not open. Use by permission is not adverse.

Two posting and recording tools interrupt the hostility story going forward. Civil Code 1008 says no use, no matter how long continued, shall ever ripen into an easement by prescription if the owner posts at each entrance or at intervals of not more than 200 feet along the boundary a sign reading substantially: "Right to pass by permission, and subject to control, of owner: Section 1008, Civil Code." Civil Code 813 lets the record owner record a notice that public or private use is by permission; that recorded notice is conclusive evidence that subsequent use during the time the notice is in effect is permissive, with service by registered mail required when the user is other than the general public, and with the caveat that recording does not affect rights already vested.

Agreed boundary: Bryant v. Blevins

Unwritten rights in the field often look like a fence that does not match the deed. That occupation can support adverse possession, a prescriptive easement, or an agreed boundary. Those are different theories. Bryant v. Blevins (1994) 9 Cal.4th 47, quoting Ernie v. Trinity Lutheran Church, requires (1) uncertainty as to the true boundary line, (2) an agreement between the coterminous owners fixing the line, and (3) acceptance and acquiescence in the line so fixed for a period equal to the statute of limitations, or under such circumstances that substantial loss would be caused by a change of its position.

Bryant then limits the doctrine. It is inapplicable where available legal records provide a reasonable basis for fixing the boundary and the party relying on the doctrine fails to establish that uncertainty as to the true line led to an agreement to mark a different line. Proof of a longstanding fence, without evidence of an agreement to take that fence as the boundary, is not enough. Acquiescence is not agreement. On a modern lot-and-block tract where a surveyor can locate the record line, a fence that misses the line by a few tenths is usually just a fence unless the file actually shows an agreement born of uncertainty.

What the surveyor does with the evidence

Field clues that Domain IV is pointing at include a fence, wall, or hedge off the record line; a worn path, driveway, or irrigation ditch crossing the adjoiner; a structure, patio, or retaining wall over the line; gates, posted 1008 signs, or the absence of either; and tax-parcel maps that do or do not match occupation. Locate those features. Compare them with the senior deed, the junior deed, and the tax assessment. Note dates you can support (tree rings are not a substitute for a recorded fence agreement). Distinguish permission from hostility. Distinguish a use (prescription) from a fee claim (adverse possession) from a line the owners meant to settle (Bryant).

Then stay in the surveyor's role. Report occupation on the map and in the narrative. Do not certify that five years of a shed has vested a new fee. Civil Code 1007 and Code of Civil Procedure 325(b) are why most California fee claims die in the tax records. A prescriptive claim can still be live on the same facts. A court quiet-titles. Your product is the evidence and the record comparison, prepared so Domain IV's analysis question can be answered without pretending the PLS license is a quiet-title judgment.