Updated on September 10, 2026
Your Hedge, Your Neighbor’s Easement: What Montecito Country Club v. Root Means for California Property Owners
By Schorr Law | September 2026
If you own property in California, especially one bordering a golf course, trail, or shared-use area — a recent appellate decision out of Santa Barbara should be on your radar. In Montecito Country Club, LLC v. Root, 118 Cal.App.5th 1236 (2026), the Second District Court of Appeal tackled several important questions about prescriptive easements, including the standard of proof required to establish one and what it takes to prove, or disprove abandonment.
The case is also notable for its treatment of easement abandonment and scope expansion by prescription — but its most important contribution to California law is its resolution of a split of authority on the standard of proof.
The Background
In brief, the case involved a dispute between the Montecito Country Club and adjacent homeowners over a recorded cart path easement and the club’s claim to a prescriptive easement for maintaining a boundary hedge and landscaping. After the homeowners removed the hedge and built improvements in the easement area, the club sued to quiet title. The trial court ruled in favor of the club. The homeowners appealed, raising arguments about abandonment, the scope of prescriptive rights, and the applicable standard of proof.
The Big Takeaway: The Standard of Proof for Prescriptive Easements Is Preponderance of the Evidence
The most significant legal development in Root is the court’s resolution of a longstanding split of authority among California’s appellate districts on the standard of proof for prescriptive easements.
Under California law, a prescriptive easement may be acquired by “open, notorious, continuous, adverse use, under claim of right, for a period of five years.” (O’Banion v. Borba (1948) 32 Cal.2d 145, 149.) The party asserting the prescriptive easement bears the burden of proof. (Connolly v. McDermott (1984) 162 Cal.App.3d 973, 976.) But what standard must the claimant meet, preponderance of the evidence, or the heightened clear and convincing standard?
The Split of Authority
For years, California appellate courts were divided on this question. The Second District itself had previously identified clear and convincing evidence as the applicable standard, relying on a line of cases tracing back to Stromerson v. Averill (1943) 22 Cal.2d 808, a constructive fraud case that was later cited in the prescriptive easement context. (See Grant v. Ratliff (2008) 164 Cal.App.4th 1304, 1310; Brewer v. Murphy (2008) 161 Cal.App.4th 928, 938; Applegate v. Ota (1983) 146 Cal.App.3d 702.)
But the Sixth District questioned this line of reasoning in Vieira Enterprises, Inc. v. McCoy (2017) 8 Cal.App.5th 1057. The Vieira court noted that the clear and convincing standard originated in Stromerson, a quiet title case involving allegations of constructive fraud, a context where the heightened standard makes sense — and questioned whether it properly extended to prescriptive easement claims generally.
The Root Court Resolves the Split
The Root court found Vieira persuasive and held that the correct standard is preponderance of the evidence — not clear and convincing evidence.
The court anchored this conclusion in Evidence Code section 115, which provides that “the burden of proof requires proof by a preponderance of the evidence” except as otherwise provided by law. Since no statute specifically requires a higher standard for prescriptive easements, the statutory default applies. The court also drew a careful distinction: overcoming the presumption that an owner of legal title owns full beneficial title may be rebutted only by clear and convincing evidence (Evid. Code, § 662), but the club in Root did not seek legal title by adverse possession or any other theory — it sought only a prescriptive easement.
Why This Matters- A Lot
The practical significance of this holding cannot be overstated. The difference between “more likely than not” (preponderance) and “highly probable” (clear and convincing) is not just academic, it can determine the outcome of close cases.
Consider a typical prescriptive easement dispute: the claimant presents evidence of decades of open use, but no one can pinpoint exactly when the use began, and there is conflicting testimony about whether a prior owner gave informal permission. Under a clear and convincing standard, the claimant might fall short. Under preponderance of the evidence, the same body of evidence may be sufficient, particularly when, as in Root, continuous use of an easement over a long period of time without the landowner’s interference raises a presumption of prescriptive rights.
For claimants, this is a significant development. Prescriptive easement claims will be easier to prove.
For servient landowners, the stakes just went up. Property owners who are aware of unauthorized uses of their land — or uses that exceed the scope of a recorded easement, should act promptly to either grant express permission (which defeats the “adverse” element) or take affirmative steps to stop the use. Waiting and hoping the problem goes away is now riskier than ever.
For practitioners, the Root decision is a must-cite in any prescriptive easement briefing in the Second District and may well be adopted by other districts. The reasoning is straightforward, grounded in the Evidence Code, and addresses the flawed lineage of the clear and convincing standard head-on. It is exactly the kind of well-reasoned appellate decision that tends to ripple across the state.
Other Notable Holdings
While the standard of proof issue is the headline, Root also includes several other holdings worth noting:
Abandonment requires more than nonuse. The court reaffirmed that “mere nonuse is insufficient to demonstrate an intent to abandon” an easement. (Visitacion Investment, LLC v. 424 Jessie Historic Properties, LLC (2023) 92 Cal.App.5th 1081, 1090.) The party asserting abandonment must show nonuse accompanied by unequivocal and decisive acts clearly showing an intention to abandon. (Gerhard v. Stephens (1968) 68 Cal.2d 864, 890.)
An easement’s scope can be expanded by prescription. The court upheld the finding that the recorded easement’s scope was “expanded by historical usage” to include maintenance of a boundary hedge and accessory landscaping — rights acquired through decades of open, continuous, adverse use. Notably, the club did not need to prove who originally planted the hedge or establish a precise inception date.
Prescriptive easement ≠ adverse possession. Where the prescriptive interest is not “so comprehensive as to supply the equivalent of an estate,” the claimant need only establish prescriptive easement elements — not the more demanding elements of adverse possession, including tax payment. (Hansen v. Sandridge Partners, L.P. (2018) 22 Cal.App.5th 1020, 1033.)
Practical Takeaways
1. The standard of proof has changed — adjust your litigation strategy accordingly.
If you are asserting a prescriptive easement claim in the Second District, Root is your new best friend. If you are defending against one, you can no longer rely on the heightened clear and convincing standard to carry marginally defensible cases.
2. Police unauthorized uses of your property — or risk losing ground.
With a lower evidentiary bar for claimants, servient landowners have even more reason to act quickly when they become aware of unauthorized use. Grant express written permission (which defeats a prescriptive claim) or take steps to stop the use.
3. Don’t assume an easement is abandoned just because its use has changed.
Abandonment requires far more than nonuse, it requires unequivocal and decisive acts showing an intent to abandon.
4. Long-term use can expand an easement’s scope.
Activities conducted beyond the four corners of a recorded easement, landscaping, fencing, maintenance, can ripen into prescriptive rights. The clock may already be running.
Conclusion
Montecito Country Club v. Root is a landmark decision for prescriptive easement law in California. By settling the standard of proof at preponderance of the evidence, and grounding that conclusion squarely in the Evidence Code, the Second District has given the bar a clear, well-reasoned rule that is likely to be followed statewide. For real estate litigators, this case should be in your briefing toolkit the next time a prescriptive easement is at issue.
If you have questions about easement rights, prescriptive use, or boundary disputes in California, contact Schorr Law for a consultation.
FAQs
1. What is a prescriptive easement in California?
A prescriptive easement may be established through open, notorious, continuous, adverse use under a claim of right for a period of five years. The party claiming the easement has the burden of proof.
2. What did Montecito Country Club v. Root decide?
The court held that the proper standard of proof for establishing a prescriptive easement is preponderance of the evidence, rather than the higher clear and convincing evidence standard.
3. What does the preponderance of the evidence standard mean?
The preponderance standard generally asks whether something is more likely than not. The Root decision distinguished this from the higher clear and convincing evidence standard.
4. Can an easement be abandoned through nonuse?
Not necessarily. The court reaffirmed that mere nonuse is not enough to establish abandonment. The party claiming abandonment must show nonuse along with unequivocal and decisive acts demonstrating an intent to abandon the easement.
5. Can the scope of an easement expand through prescription?
Yes. The Root decision upheld a finding that the scope of a recorded easement had expanded through historical use to include maintenance of a boundary hedge and related landscaping.
6. What does Montecito Country Club v. Root mean for California property owners?
The decision may make prescriptive easement claims easier to establish because the applicable standard is preponderance of the evidence. Property owners who become aware of unauthorized uses or uses extending beyond a recorded easement should consider acting promptly rather than allowing the use to continue.
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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