Also known as: prescription · acquisitive prescription · extinctive prescription
Written by attorneys — see sources below.
A method of acquiring an easement in land through open and adverse use that continues without interruption for the statutory period fixed by local law.
Daphne Doyle drove daily across a path on Devon Drake's vacant lot to reach the highway. The path remained open and free of gates or signs for the full statutory period. When Devon later fenced the route, Daphne claimed an easement by prescription. The court examined whether the use had been continuous and uninterrupted throughout the required years.
Doris Dean crossed a footpath over David Dunn's wooded parcel each weekend to reach a public road. The path stayed unmarked and unobstructed for the statutory period. When David erected a barrier, Doris asserted a prescriptive easement. The court assessed whether the use satisfied the continuous and adverse requirements.
Donald Dyer herded cattle daily across a corner of Doris Day's ranch to reach water. No permission was given and the route stayed visible for the full prescriptive period. When Doris installed fencing, Donald sued for a prescriptive easement. The court reviewed whether the use had been sufficiently notorious and uninterrupted.
Deborah Dunn and her adjoining neighbors used a trail across Daniel Diaz's property for access to a lake. The use continued openly and adversely for the full prescriptive period. When Daniel attempted to close the trail, the court addressed whether the benefit extended only to Deborah or also to the neighbors. The extent of the denial during the adverse period controlled the scope of the resulting easement.
Derek Drake used a gravel drive across Donna Drew's lot to reach his garage. The drive remained open and the use adverse for the statutory period. When Donna blocked it, Derek claimed an easement by prescription. The court determined whether the use met every element required by local prescription law.
Diana Day walked across a meadow on Douglas Dean's farm to reach her own back acreage. The route stayed unobstructed and the use adverse throughout the prescriptive period. When Douglas plowed the path closed, Diana sought recognition of a prescriptive easement. The court examined continuity and lack of permission during the entire period.
Plaintiffs in these consolidated actions were exposed to the drug diethylstilbestrol, known as DES, while in utero after their mothers ingested the drug during pregnancy to prevent miscarriage. Because multiple manufacturers produced DES according to the same formula, the plaintiffs could not identify the specific manufacturer responsible for the particular DES taken by their mothers. The plaintiffs filed suit in the San Francisco Superior Court against numerous drug manufacturers, with typical complaints naming 170 or more defendants. These cases were designated as complex litigation, with pretrial rulings issued in a lead case numbered 830-109 that would apply to at least 69 related actions. The complaints alleged that the defendants manufactured DES from the same formula, that the drug was unsafe for use in preventing miscarriage, and that the manufacturers knew it contained a cancer-causing substance yet failed to provide warnings to users or their physicians. In addition to claims for negligence, the plaintiffs asserted causes of action for strict liability based on design defects in DES, as well as breach of express and implied warranty and fraud. Where they could not identify the specific manufacturer, the plaintiffs sought to hold liable those defendants who had manufactured a substantial share of the DES market. The trial court sustained demurrers to the strict liability design defect claims. It ruled that breach of warranty and fraud claims could not be pursued under the market share theory, while also determining that any liability would be several rather than joint. The Court of Appeal reviewed the trial court's pretrial rulings through writ proceedings and affirmed those determinations. The Supreme Court of California granted review to consider the questions presented by the litigation.
View caseThe use must be adverse, open, notorious, continuous, and uninterrupted for the statutory period. The Restatement requires that the use be as it would be if an easement already existed. Permissive use prevents the claim from ripening.
The benefit may accrue to the adverse user alone or to the user and others who share the dominant land. Successive periods of use may be tacked if privity exists between users. The easement remains limited to the extent of the denial of the servient owner's rights during the period.
Prescription arises solely from long adverse use without permission. Grant requires a writing satisfying the statute of frauds. Implication or necessity arises from circumstances surrounding a conveyance rather than from the passage of time.
…the three patients died. Although the Court of Appeals considered the constitutionality of the statute "as applied to the prescription of life-ending medication for use by terminally ill, competent adult patients who wish to hasten their deaths," the court did not have before it any individual plaintiff seeking to hasten…