What is the test for establishing that a party has a right to an express easement?

Despite the logic of the foregoing decision, the state high court returned to the use of presumptions in Warsaw v. Chicago Metallic Ceilings, Inc., supra, 35 Cal.3d 564. There, the court said: "The issue as to which party has the burden of proving adverse or permissive use has been the subject of much debate. However, [] [we agree with the view, supported by numerous authorities,] that continuous use of an easement over a long period of time without the landowner's interference is presumptive evidence of its existence and in the absence of evidence of mere permissive use it

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will be sufficient to sustain a judgment." (Id. at pp. 571-572.) However, in that case, as in Fleming v. Howard, a presumption was unnecessary because there was evidence suggesting adverse use. At one time, the plaintiffs had unsuccessfully sought an express easement yet continued to use the easement for approximately seven years thereafter. (Id. at p. 572.) According to the court, "defendant's adamant refusal to negotiate on the issue [of an express easement] is evidence that no permission was given or contemplated." (Ibid.)

In the present matter, unlike Fleming v. Howard, O'Banion v. Borba and Warsaw v. Chicago Metallic Ceilings, Inc., there was no evidence to suggest that the use by plaintiffs or their predecessor was under a claim of right. But assuming a presumption of a claim of right may arise from continuous use alone, defendants presented sufficient evidence to rebut that presumption.