As it pertains to CALIFORNIA CASE Law, looking for prescriptive
easement rights court decision(s) in the affirmative for a 1)Movable
Structure, or more
specifically 2) a water tank.

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Request for Question Clarification by tutuzdad-ga on 29 Jan 2003 13:35 PST

Dear makeiteasy-ga:

I am looking into your question now. Please clarify some questions:

Define "moveable structure" (All structures are potentially moveable.
Are we talking about a small storage shed, a mobile home, a brick
building, etc.?)

For what reasonable purposes would one need to access this water tank
located on, or across the land of another? (Is it drinking water
source, or perhaps recreational, etc.?)

Has a history of unimpeded access been established? If so, for how
long?

Are there boundaries, fences, gates or other barriers in place that
prevent access? (Specifically, have recent barriers been placed where
none previously existed with the sole purpose of preventing historical
access?

If these structures/tank are moveable, why aren't they being moved to
such as place as to avoid litigation?

There are MANY types of easement cases. I will need these questions
answered in order to narrow the case down to something more specific
to your interests. In the meantime I will proceed in the direction
that I anticipate.

Regards;
tutuzdad-ga

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Clarification of Question by makeiteasy-ga on 29 Jan 2003 14:59 PST

Moveable structure defined:A "metal water tank" weighing several tons.
 can be construed as "movable" of course a heavy crane would be need to move it.

understand easements,just looking for case law.
fundamental issue: granting of prescriptive easement for water tank

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Request for Question Clarification by tutuzdad-ga on 29 Jan 2003 21:12 PST

Based on the limited information you have provided I have found no CA
case summary related exclusively to prescriptive easements and "water
tanks".

If you'd care to elaborate, perhaps I could tie this in with a similar
case wherein a party won easement rights to a similar water source,
water tower, trough, livestock water/pond, agricultural irrigation,
etc.

If not, then perhaps another researcher will try his/her hand at it
using the information you've given.

Regards;
tutuzdad-ga

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Request for Question Clarification by justaskscott-ga on 03 Feb 2003 19:42 PST

I have found a case from the 1950s decided by the First District Court
of Appeal in Calfornia, where the plaintiffs successfully established
a easement by prescription to one half of the water flow from a spring
on the defendants' property, based on plaintiffs' and previous owners'
use of a connection to a tank that collected water from the spring. 
(Please note, as indicated by the disclaimer at the bottom of the
page, that this is not a professional interpretation of the case;
rather, it is just my layperson's understanding of the case.)

Would this case be sufficient for an answer?

"To establish the elements of a prescriptive easement, the claimant
must prove use of the property, for the statutory period of five
years, which use has been (1) open and notorious; (2) continuous and
uninterrupted; (3) hostile to the true owner; and (4) under claim of
right."  See  Tadina v. Bowles, No. C032230 (Cal.App. Dist.3
10/25/2001).  "These elements are designed to insure that the owner of
the property being encroached has actual or constructive notice of the
adverse use with sufficient time to take action." See Sunburst Estates
II Homeowners Association v. Sunburst Estates I Homeowners
Association, No. B143938 (Cal.App. Dist.2 11/29/2001)(not for formal
publication)

In this sense, the presense of a structure is highly relevant to
whether there has been sufficient use to give rise to a claim of
prescriptive easement (or for that matter to a claim for adverse
possession).  However, the nature of the use is the determinative
factor.  Regardless of whether a structure or water tank is moveable,
if it was used openly, with a claim of right to the use even as
against the owner, for the statutory 5 year period, a prescriptive
easement would probably arise.  Use with the permission or license of
the property owner, would not support a claim to a prescriptive
easement.

One thing I didn't understand was whether the water tank was on the
property over which the prescriptive easement was sought, or whether
water tank was on other property and access to it was over the
property over which the prescriptive easement was sought.  Obviously,
simply crossing over someone else's property periodically to get a
water tank is not as open, hostile and continuous as placing the tank
on that person's property.

Whether you are arguing for or against a prescriptive easement, the
better question than is how the property in question was actually
usesd in connection with the water tank.  Was the use with permission,
only periodic or sporadic?  These things would undercut a claim to a
prescriptive easement and are the focus of dozens of cases. See, for
example, Dubin v. Chesebrough Trust, 96 Cal.App.4th 465, 116
Cal.Rptr.2d 872 (Cal.App. Dist.2 02/26/2002) On the other hand, if the
use was open, in complete disregard of the owner's wishes, and
continuous for the statutory period, a strong claim for a prescriptive
easement could be made.  See for example, Green v. Etchison, No.
E029715 (Cal.App. Dist.4 03/29/2002)(not for formal publication).

Does that help?