Feeling entitled, or deserving or just plain covetous? You have discovered that you are encroaching on your neighbor's property. In California, two inconsistent doctrines can apply to allow you to continue using your neighbor's property, if the encroaching use has been long enough.

Prescriptive easement doctrine is for those guilty of intentionally wanting to take their neighbor's land without regard to carelessness. To win a prescriptive easement claim, you must prove continuous and uninterrupted, adverse and hostile, open and notorious use over the real property of a neighbor for a period in excess of five years. Proving each element can be a battleground. What is the scope and extent of the easement? What has been the historical use? You can only obtain a legally allowed use, which is limited to the prior specific use.

Equitable easements are for those claimants who are innocent—meaning those who may have acted mistakenly or in good faith but did not act negligently or willfully to take someone's land. You cannot be a wrongdoer and acquire an equitable easement. Usually, you would be someone who invested in something valuable impinging on neighboring land. A recent case has held that because a landowner's encroachment onto a neighboring property by planting trees and placing improvements was negligent, the landowner could not claim an equitable easement.

Case law provides that the prescriptive easement should be narrowly applied because you are essentially stealing a portion of your neighbor's property rights. Is the use tantamount to exclusive ownership? You cannot get an easement that precludes your neighbor from all use of his or her land. Is your use truly hostile and adverse for five continuous and uninterrupted years, or else with permission? If with permission, no prescriptive easement can accrue. One must have acted without permission to qualify. Did the encroaching party lack the intent to claim the land of the neighbor (even if the mistake had been realized)? There must be some kind of intent to permanently possess the land. Was the use over years too occasional or sporadic to be noticeable? Irreconcilable legal decisions abound, and skill in finding and presenting a winning argument is needed.

Recent decisions have also highlighted another problem with the common law of prescriptive easements. What is the burden of proof? Most courts hold the standard is clear and convincing evidence—at least for most of the elements. But some cases have suggested that the correct standard should be preponderance of the evidence.

Because you will not qualify for a prescriptive easement where any one of the elements cannot be met, it is often worthwhile to allege an equitable easement at the same time, pleading in the alternative. Three different factors are required to establish an equitable easement: (1) you must be innocent, i.e. your encroachment must not be willful or negligent; (2) your neighbor would not be irreparably harmed if the easement were allowed; and (3) the hardship to you by enjoining the encroachment must be greatly disproportionate to the hardship caused to the neighbor by allowing the encroachment to remain. Decisional law on the equitable easement doctrine is murky and fact-driven, and a judge can exercise wide discretion in granting relief.

The elements for the two doctrines are discrete. By arguing for a prescriptive easement (say, by showing that you acted brazenly, openly and notoriously in trying to steal your neighbor's land), you may make it impossible to get an equitable easement. Further, an equitable easement may be granted on terms that are unacceptable. You could be limited to a life estate interest. You could be required to give a reciprocal easement to your neighbor or to pay your neighbor money based on fair market value if an equitable easement is granted. Triable issues abound. Expensive expert witness testimony by appraisers, surveyors, geologists, architects and engineers may be necessary.

Finally, questions about whether a prescriptive easement exists are normally for the jury, while whether and to what extent an equitable easement may apply is for the court (without a jury) in equity. This means the normal property line dispute case can be bifurcated—drawn out into two trials. Because the determination of whether a prescriptive or equitable easement is necessarily fact-laden, stubborn disgruntled neighbors can look forward to a long fight if they have irrational desires and economic means. The best result might be to work for a quick compromise considering that neither side may be happy with a protracted legal affair. Often, however, neither side wants to give an inch.

As Justice Holmes commented: “It is the merit of the common law that it decides the case first and determines the principles afterwards.” This is so true in litigating easement claim cases in light of the unsettled nature of the law.