Randy Sullivan | Patton Sullivan Brodehl
Not every apparent prescriptive right vests. At first glance, a decades long encroachment might appear to be a shoo-in as an easement by prescription. However, encroaching structures built without permits or approvals are at risk of being ordered removed where a local municipality declares the act a public nuisance.
In Wang v. Peletta, 112 Cal.App.5th 478 (2025) a massive and expensive retaining wall reaching as high as 17 feet was ordered removed. The wall was built decades earlier in the 1990s. The property owners who built the wall were attorneys. The issue turned out to be that the wall was built without any permits or a survey.
The dispute arose when many years later, in 2013, a new neighbor commissioned a survey and discovered that the retaining wall encroached on his property. Both properties are more than an acre and located in unincorporated Napa County.
The property owners who built the wall claimed they had a prescriptive easement because this massive trespassing wall had been in place well beyond the required 5 years. The neighbor, however, claimed it did not qualify as a prescriptive easement because the use was always subject to abatement as a public nuisance.
Specifically, the Napa County Code explicitly provides that it is “unlawful and a public nuisance for any persons, firm or corporation … to erect [or] construct … any building or structure in the unincorporated territory of Napa County” without complying with permit requirements and applicable codes.
The Court held the public nuisance doctrine defeats prescriptive easement claims. A real property right cannot vest because the activity is unlawful from its inception. It can be abated. The passage of time does not legalize the use. The County could have always ordered it removed. As a result, no real property rights vest.
This case is important because in any encroachment dispute local ordinances must be examined to determine whether they apply and can defeat an easement claim.
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