Prescriptive easement cases are often entertaining. In Windsor Pacific, LLC v. Samwood Co., Inc., the plaintiff received from a neighbor written permission to use an access road over the neighbor’s property and property owned by a third party. The neighbor had an option to purchase the property owned by the third party.
The plaintiff sued to claim an adverse and permanent right to continue to use the access road. Consent, however, is a defense to any adverse use and the trial court agreed. On appeal, the plaintiff claimed that the third party never granted permission to use the access road, making that part of the use adverse.
The court of appeal affirmed the decision of the trial court. The plaintiff believed that its use of the entire access road was permissive when it entered into the written agreement with the neighbor.
The opinion confirms that the plaintiff was equitably estopped to claim an adverse use, regardless of whether or not the neighbor had the authority to grant permission on behalf of the third party. The fundamental conclusion, however, is that courts are reluctant to grant a permanent interest in real property to a party that does not own it.