Unintended COWnsequences

May 11, 2010


We’ve herd that the Town plans a trail map which will include not only publicly owned trails and public easement trails but also private trails. There are those among us who think that some of these trails may have developed into prescriptive easements and some will become subject to prescriptive easements in the future by public use. We fear there are a number of unintended COWnsequences that may come from including private permissive easements on a map.

Our attorney friends say that to establish a prescriptive easement, four elements must be established by clear and convincing evidence: (1) open, notorious, and uninterrupted use; (2) hostile to the true owner; (3) under the claim of right; (4) for the statutory period of five years. Whether the elements of prescription are established is a question of fact for the court to decide. However, there are steps that a property owner can take to make sure that the use is clearly permissive and that people who have voluntarily opened their trails to the public or to segments of the public will be well advised to take steps to avoid any argument that their voluntary access will morph into a prescriptive easement. We are afraid that for some, espically if their trails are published on a map, the easiest way to accomplish this is to permanently close the trail to public use. We don’t want to see that happen.

Some voluntary easements are intended to be available only to members of the Woodside riding club. The owners may feel overburdened if the general public begins to use them. They may close them down. We don’t want to see that happen.

Once publicized, bicyclists and hikers may start use these trails. Who will police this and stop them? This too may encourage voluntary trails to be closed. We don’t want to see that happen.

We COWs love the trails which are one of the things that make our Town so special. We do not want to see a well intentioned but misguided project, discourage property owners from voluntarily keeping trails open.

2 Comments on “Unintended COWnsequences

  1. Anonymous

    You’re absolutely right about prescriptive easements. There are some simple steps one can take to avoid them, and property owners should take such action to the extent they’d like to avoid such an easement. But this kind of FUD masks the true nature of this kind of statement: outsiders aren’t welcome in Woodside.

    Trails are one of the things that makes this town special. Hopefully, our kids will use them to walk to school and avoid the roads. And we will walk on them to visit our neighbors. And just maybe, someone from out of town will walk on them too. It’s scary, I know.

    Portola Valley publishes a trail map, and also a great map showing safe routes to school. Why can’t we?

  2. Anonymous

    Get a Grip! Staff is still a bunch of misguided micro managers. The ghost of Hope Sullivan still rules the arbitrary and capricious planning and permitting process in this town.
    They wear you down with bizarre interpretations of internally inconsistent and contradictory ordinance language because “That’s their interpretation”
    Are you kidding me! Don’t they see the obvious contradictions?
    Logic and reason escapes staff because they are glorified box checkers, who take orders from a sub optimal town attorney and town manager who are treading water in defiance of well established case law of State General Plan, Zoning and Land Use Law in dictating how or HOW NOT you can use your land.
    Council and Planning Commission continue to slog through because of misdirection from staff.
    The Town is vulnerable to legal attack that will saddle the Town with huge legal costs and reprimand from courts and grand juries for gross incompetence.

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