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“I own an undeveloped 5 ac parcel in California. Upon having it surveyed, I learned that my neighbor’s driveway falls as much as 20′ outside of the easement. The easement is 60′ (30′ of which is on my property) for a one lane gravel road. The road could easily be moved to within the easement without any major excavation, etc. Can I insist the road be moved to regain my property? Is it my responsibility to rebuild it, or the responsibility of the neighbor?”You’d have to go back over the history of the property to figure this out. If we assume that the road was put in by your neighbor, and he is the only one that uses it, it would normally be his responsibility to maintain it. However, if you (or the prior owner of your property) either built or used the road, there may be some shared maintenance obligation.
Question: The other factor is whether your neighbor has been using this current driveway for long enough to have gained a prescriptive easement. A written easement can, under circumstances like this, become extended by prescription, if the easement owner is using an additional portion of the other party’s property for the requisite amount of time, and without permission.
Answer:
If your neighbor has prescriptive rights, then you cannot force him to remove the road.
