Prescriptive Easement and Encroachment

Wang v. Peletta (2005) 112 Cal.App.5th478

​Homeowners built a retaining wall on their property without first obtaining a permit or a survey. Their neighbor later learned that the wall encroached on the neighbor’s property and the county ordered it abated.

The homeowners sued the neighbor and the neighbor cross complained. The trial court granted judgment in the neighbor’s favor, quieting title against the homeowners’ easement claims and ordering them to remove the encroachments.
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The Court of Appeal affirmed. The trial court did not err in determining as a matter of law that the homeowners could not establish a claim to a prescriptive easement because the nuisance caused by the homeowners’ unpermitted wall and other improvements could be characterized as a continuing nuisance. The encroachments were built without a permit, the nuisance thereby created had always been subject to abatement, and the county ordered such through a citation directed to the neighbor. Thus, the general rule applied that there could be no prescriptive easement to maintain a public nuisance. The homeowners also failed to establish an equitable easement, given that the trial court did not abuse its discretion in finding that the encroachment was not innocent.