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Felgenhauer v. Soni - 121 Cal. App. 4th 445, 17 Cal. Rptr. 3d 135 (2004)


Claim of right does not require a belief or claim that the use is legally justified. It simply means that the property was used without permission of the owner of the land. In most of the cases asserting the requirement of a claim of right, it means no more than that possession must be hostile, which in turn means only that the owner has not expressly consented to it by lease or license or has not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.


Plaintiffs Jerry and Kim Felgenhauer purchased a parcel of property in 1971 consisting of the front portion of two contiguous lots. The parcel was improved with a restaurant. The back portions of the lots consisted of a parking lot that was owned by a bank. The parking lot was between a public alley and the back of the restaurant. From the time the Felgenhauers opened their restaurant in 1974, deliveries were made through the alley by crossing over the parking lot to the restaurant’s back door. The Felgenhauers never asked permission of the bank to have deliveries made over its parking lot. The Felgenhauers operated the restaurant until 1978, but reopened it in June 1982. In 1984, the Felgenhauers sold the restaurant business, but continued to own the real property. The Felgenhauers leased the property to various tenants, who continued to operate the restaurant. Deliveries continued over the bank's parking lot. In January 1988, a fence and gate, which defined the boundary between the bank's property and the Felgenhauers' property, were constructed. In March 1998, defendants Ken and Jennifer Soni purchased the bank's property, including the parking lot. In 1999, the Sonis informed the Felgenhauers' current tenant of their plan to cut off access to the restaurant from the parking lot. The Felgenhauers later filed an action in California state court to quiet title to prescriptive easements over the Soni's neighboring property. After a trial, a jury made special findings establishing a prescriptive easement for deliveries. The jury found the prescriptive period was from June 1982 to January 1988. The Sonis appealed.


Did a claim of right require a belief or claim that the Felgenhauers' were legally entitled to use of the easement over the Sonis' property?




The court of appeal affirmed the trial court's judgment. A claim of right did not require a belief or claim that the use was legally justified. The Felgenhauers' first tenant testified that he had no discussion with the bank about deliveries being made over its property, and the jury could have concluded that the tenant used the bank's property without its permission. Thus, the tenant used the property under a claim of right. The jury could also have found that the prescriptive easement was established prior to the erection of the fence and gate. Once an easement was created, it was irrelevant whether the owner of the servient estate purported to grant permission for its continuance.

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