While there are a lot of challenges and obstacles to cramming a massive housing project over at Mater Dolorosa, they may face another obstacle. Before the gates and fences were put up a couple of years ago, remember how everyone would take walks all over those grounds - criss-crossing the grounds to walk their dogs, picnic, or take a jog - in some cases the use of those trails were so frequent the resulting grooves etched into the dirt rivaled that of the old Roman roads that can be seen throughout Europe.
You even have all the neighbors along the western border who have little gates that gave them easy access to the Mater Dolorosa Monastery grounds. Well, it appears that in California, if you have done that for 5 years let alone over 80 years, that the public can gain a "prescriptive easement" to continue to do so despite the objections of the owner of the property. That's why it is so dangerous when people walk all over your land without permission.
There are four basic elements to gain a prescriptive easement:
1. Use that is actual and open (in other words did the property owner know about it and took no action)
2. Use that is adverse to the owner (in other words, was it done without permission)
3. Must be continuous use (doesn't have to be constant use - even periodic or seasonal use will quality)
4. Must be for a minimum of 5 years
A prescriptive easement can arise from something as simple as a pedestrian crossing a parking lot of a business once or twice a week to access an adjacent property. While the activity may seem innocuous, after five (5) continuous years of crossing the parking lot, the pedestrian may successfully argue that it is his or her right to do so.
Should the pedestrian formalize the prescriptive easement by filing a lawsuit, it can cause complications when the property owner decides to sell. Multiple the Mater Dolorosa situation by about a thousand and this scenario sounds a little familiar, doesn't it? In the case of Mater Dolorosa, it wasn't 5 years that people were roaming their grounds, it was over eighty years.
Because there seems to be alot of people unhappy with the prospect of fifty or 60 (Danny?) over-sized wickiups blocking what used to be their "hunting grounds," its hard to know who is going to come out of the woodwork and assert prescriptive easement rights with a lawsuit.
The interesting thing for any developer is how much money they will have spent on their due diligence before they find out that their McMansions are blocking the path of Jane Doe and her dog Spot.