How to establish ROW (gate)

[Alex23]

What is the name of your state (only U.S. law)? California

I recently inherited my house from my mother. We have lived here for 35 years. When I was clearing out the overgrowth from the back yard I discovered a gate in the corner of the fence that leads to the street along the side of the neighbor's garage and the other border is my back neighbor's drive.

My house was built by the next door neighbor and his father eighty years ago (both have passed), but the wife still lives next door. I suspect that the gate might have been put there for access, but don't know when. I don't know if it's 80 years old, but it's been there longer than we've owned the property.

I tested the gate and it still works, but I didn't go thru their property. I don't really plan on using the access, either, because I think that it would be anti-social. I'm pretty sure that no one has come thru that side for decades since it was so overgrown.

When the neighbor passes her kids might take residence, or they might sell. I'd like to know what my rights are before that happens.

Does a gate imply an existing right-of-way or easement? If it's unused, is it forfeit?

Thanks for considering my situation.

Here's a diagram that should help:
http://i935.photobucket.com/albums/ad193/fishforfood/places/GATE-TO-PATH.gif

 

[drewguy]

If there's no easement recorded, then the only way to establish an easement is to (a) agree to one or (b) prove one by prescription (i.e., like adverse possession). Given that the gate hasn't been used for some time, apparently, it's unlikely you could establish it by prescription.

But, if your mom and the neighbor were on good terms, why not ask if she'd be willing to grant you an easement for pedestrian access if it's something that interests you. You could record it and then you'd have the easement.