Updated on October 20, 2026

When the Driveway Is on the Wrong Lot: Miller v. Johnston and the Equitable Easement for Access

Every California real estate litigator eventually meets this client: a homeowner who has used the same paved driveway for decades, only to learn from a survey that part of it sits on the neighbor’s land. The neighbor wants it back. The client has no prescriptive claim worth pressing. Is the client out of luck? A 1969 First District decision says no. In Miller v. Johnston (1969) 270 Cal.App.2d 289, the Court of Appeal used the relative hardship doctrine to give a landowner continued driveway access over a neighbor’s property, even after the landowner had signed away his prescriptive rights.

The Facts: A Hockey Stick in Sausalito

The Millers bought a home in Sausalito in 1951 with a recorded 15-foot easement leading to Cloud View Road. The paved driveway, however, did not follow the recorded easement exactly. It strayed onto the Johnstons’ lot in two small triangles: Parcel 1, about 150 square feet, and Parcel 2, about 50 square feet.

Parcel 1 was easy. The Millers and their predecessors had used it openly and continuously for more than the statutory period, and the court affirmed a prescriptive easement. The court also rejected the argument that the parties’ mistaken belief that the pavement lay within the recorded easement defeated the claim.

Parcel 2 was the problem. In 1953, after the Johnstons’ attorney accused the Millers of trespassing, Dr. Miller signed an agreement releasing “any easement, privilege or license” over the corner in exchange for a revocable, year-to-year license. The trial court voided that agreement for lack of consideration. The Court of Appeal disagreed: the agreement settled a bona fide dispute, used words of present conveyance, and both relinquished any prior prescriptive rights and blocked new ones from accruing. When a neighborly feud erupted in 1963, the Johnstons revoked the license and planned to regrade the corner and fence it off.

The Pivot: From Prescription to Relative Hardship

With prescription off the table, the court turned to equity. It held that the 1953 agreement did not bar the Millers from invoking the relative hardship doctrine, because nothing about the physical layout had changed. Once the license ended, the Millers stood in the shoes of a landowner who could assert relative hardship against an innocent trespass.

The court then made the move that matters for access cases. The relative hardship cases, including Christensen v. Tucker (1952) 114 Cal.App.2d 554, involved fixed structures such as walls and buildings. The court saw “no difference in principle, only in degree,” between a driveway that encroaches around the clock and the intermittent passage of vehicles over another’s land. That sentence opened the door to using equitable easements for access, not just to excuse encroaching improvements.

The Christensen Factors Applied

The court walked through the three Christensen v. Tucker factors:

• The Millers did nothing wrong. The driveway was misdesigned and misaligned before they bought, and their only arguable negligence was failing to press a prescriptive claim in 1953.
• No irreparable injury to the owner. Given the Johnstons’ own improvements, the corner could only serve as a driveway anyway. Their only harm was losing a grade of their own choosing, and the judgment let them regrade for near maximum use while preserving reasonable ingress and egress.
• Greatly disproportionate hardship. Without the corner, the Millers could not secure practical access without disturbing the rights of other neighbors and the utility companies and spending considerable sums on realignment. The trial judge, after viewing the site, found that confining the Millers to the recorded easement would be an “extreme hardship.”

Equity also weighed the Johnstons’ conduct. They had obtained a 1952 zoning variance after assuring the city and their neighbors that they would not disturb the private lane or access to adjoining lots. The court held that estoppel did not independently establish an easement, but the evidence properly bore on the equities.

The Price of Equity: Compensation

The court did not hand out a free right of way. Because the Millers’ rights rested on relative hardship rather than a prior claim, the Johnstons were entitled to damages, which the trial court had valued at $200. The Court of Appeal reversed on that point and remanded for an award, findings on the relative hardship facts, and a grade for joint use of the parcel. Title stayed with the Johnstons, subject to the Millers’ rights. The court also noted that the Millers’ decision to sue first did not hurt them; it showed good faith.

Why Miller Still Matters

Miller sits within a line of California cases that treat the equitable easement as a tool courts may use, sparingly, to deny an injunction and award compensation instead. Practitioners should keep a few lessons in mind:

• A failed or waived prescriptive claim does not end the case. Plead an equitable easement in the alternative, and get it into the pretrial issues. In Miller, the pretrial order’s “balancing of the equities” issue saved evidence that would otherwise have fallen outside the pleadings.
• Build the hardship record. Expert testimony, the cost of alternative routes, utility and neighbor impacts, and a site visit by the judge carried the day.
• Mine the history for the owner’s representations. Variance applications, permit files, and planning minutes can tip the equities.
• Budget for compensation. Equity grants access, but the dominant owner pays for it.
• Watch your releases. A settlement that converts an easement into a revocable license can extinguish prescriptive rights, as Dr. Miller learned.

Later California courts have tightened the doctrine, emphasizing that the encroacher must show innocence and that the hardship must be greatly disproportionate, and that courts should apply the remedy cautiously. Before relying on Miller, confirm how current appellate authority in your district frames those requirements. But the core insight endures: when a driveway is the only practical way home, California equity can keep the gate open, at a price.

Frequently asked questions (FAQ)

1. What is an equitable easement in California?

An equitable easement is a court-ordered right to use another person’s property in limited circumstances. California courts may consider granting one when an encroachment was innocent, removing it would cause greatly disproportionate hardship, and the property owner would suffer relatively little harm. The court may require the party receiving the easement to pay compensation.

2. Can I keep using a driveway that crosses my neighbor’s property in California?

Potentially. A court may recognize a prescriptive easement or, in appropriate circumstances, grant an equitable easement. The outcome depends on the history of the driveway, the parties’ conduct, the availability of alternative access, the relative hardships, and applicable law. Long-term use alone does not guarantee a legal right to continue using the driveway.

3. What is the difference between a prescriptive easement and an equitable easement?

A prescriptive easement generally arises from qualifying use of another person’s property for the required statutory period under California law. An equitable easement is a discretionary remedy based on the balance of hardships and other equitable factors. A party who cannot establish a prescriptive easement may still argue for equitable relief, depending on the facts.

4. What factors do California courts consider when granting an equitable easement?

Courts applying the relative hardship doctrine consider whether the encroachment was innocent, whether the property owner would suffer irreparable injury, and whether removing the encroachment would cause greatly disproportionate hardship. The remedy is applied cautiously and depends on the specific circumstances of the dispute.

5. What did Miller v. Johnston establish about driveway access?

In Miller v. Johnston (1969) 270 Cal.App.2d 289, the court applied the relative hardship doctrine to a driveway encroachment. It concluded that the doctrine could apply to vehicle access over another person’s property, not just physical structures such as walls or buildings. The case illustrates how equitable relief may preserve practical access while requiring compensation.

6. Can a neighbor revoke permission to use a shared driveway?

It depends on the legal basis for the driveway use. A revocable license generally permits use subject to its terms and may be withdrawn. A recorded easement or a valid prescriptive easement involves different legal rights. Written agreements, the parties’ conduct, and the circumstances surrounding the permission can affect the analysis.

7. Can a California court require compensation for an equitable easement?

Yes. A court granting an equitable easement may require the party receiving the benefit to compensate the property owner for the burden imposed on the property. The amount and terms depend on the circumstances and the court’s determination.

8. What should I do if a survey shows my driveway crosses my neighbor’s property line?

Review your deed, recorded easements, survey, title documents, and any written agreements concerning access. Avoid assuming that long-term use automatically establishes an easement or that the neighbor can immediately force removal. Consult a California real estate litigation attorney to evaluate your rights, possible alternative access, and available remedies before making changes or signing a release.

About the Author

Zachary D. Schorr is a California real estate litigation attorney and the founding attorney of Schorr Law. He represents clients in specific performance actions, partition lawsuits, quiet title disputes, and complex real estate litigation throughout Southern California.

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