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MCLEAR-GARY V. SCOTT - New Appellate Decision

Posted: Thu Jul 12, 2018 6:14 am
by Ian Wilson
A new Appellate Decision on a easement case in Mendocino County.

Barring expansion of use of an easement

A lump sum payment of delinquent taxes is not “timely payment of taxes” for adverse possession. (CCP 325)

Ian Wilson
San Mateo County Surveyor

Re: MCLEAR-GARY V. SCOTT - New Appellate Decision

Posted: Thu Jul 12, 2018 8:46 am
by William Magee
One part of this case bothers me. The land owner locked a gate in 2006, thereby commencing the tolling period for the somewhat reversed adverse possession claim made in 2011 against the apparent but not yet adjudicated prescriptive access usage. In 2009 the person utilizing the apparent prescriptive access filed suit to gain adjudicated title of the prescriptive use. This filing of claim for prescriptive right in 2009 however did not stop the tolling period for the rebutting claim of adverse possession made 2 years later in 2011. This means that while the claim of prescriptive right was grinding through the court process, the continuation of locked gate kept the tolling period going for claim of adverse possession.
What bothers me about this, is that the person who made claim for prescriptive right through the court system due to an owner trying to block her long standing usage, was not afforded benefit of doing the civilized thing by using the court system to relieve a hostile situation. In stead the court allowed the tolling to continue for 2 years during court proceedings. As the user of the apparent prescriptive but not yet then adjudicated right of prescription, the easement user's only recourse during the 2 years of court proceedings would have had to have been to knock down the gate in an increasing hostile and potentially dangerously escalating fashion. Ms. Mclear-Gary had gained the apparent right by the time she filed claim to quiet title in 2009. Why the court put her in the position of having to take a hostile set of actions (which she didn't) in order to protect her apparent established right is beyond me. I disagree that the court should have allowed the tolling for adverse possession to continue after the filing of the action to quiet title for prescriptive right. McLear-Gary tried to use the court to produce a civilized end to a dispute but the court's action of allowing the tolling to continue during the lengthy court process puts persons like McLear-Gary in the position of having to knock gates down even after trying to make a civilized use of courts for peaceful resolution.