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Easements in California: Creation of Easements

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July 23, 2018


CREATION OF EASEMENTS


A. OVERVIEW. There are many ways an easement can be created.

(1) Whether an easement exists, and the nature and extent of an easement, is question of fact that depends on all the surrounding circumstances.
(2) There are many rules and legal principles governing the creation of easements, and these rules will often be interpreted and applied by the courts in a way to reach a result that the court perceives to be equitable.

(3) Since an easement results in a diminution in the rights of the owner of another property, the burden of proving the existence of the easement is on the party claiming the easement.

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(4) Since easements are an interest in real property, they are covered by the statute of frauds. Consensual easements generally must therefore satisfy the requirements for transfers of interest in real estate (in writing and signed by the person making the transfer, or by his or her agent). Cal. Civ. Code §1624(a)(3). However, there are many non-consensual ways easements can be created.

B. RECOGNIZED METHODS OF CREATION. The recognized methods for creating an easement on the land of another are limited to the following:

  • express grant
  • express reservation
  • implied grant
  • implied reservation
  • necessity
  • prescription
  • recorded covenant
  • dedication
  • condemnation
  • estoppel
  • a court decision ("equitable easements" to balance hardships)
  • partition

C. APPLICATION OF EQUITY PRINCIPLES TO METHODS OF CREATION. The extent to which these methods of creating easements are subject to the general rules of equity can be seen by seen by analyzing the decisions of the courts in the various situations in which easements have been found to exist:

(1) EXPRESS GRANT OR RESERVATION.
An easement may be created by express words, either of grant or reservation. Typically, an express grant of easement will be created by deed but may be created by any instrument that transfers an interest or estate in real property.

(a) An easement may also be created by a will, agreement, recorded covenant or any other document that evidences an intent of a person to establish an easement for the use of his or her property by another party. Rice v. Capitol Trailer Sales of Redding, 244 Cal.App. 2d 690, 692, 53 Cal.Rptr. 384 (1966).
1) No specific language is required to establish an easement. Bello v. ABA Energy Corp., 121 Cal.App.4th 301, 16 Cal.Rptr.3d 818 (2004).

2) While there is no required formula for how to grant an easement, care must be taken as to the language used. Confusion may arise over whether the grant (i) creates an easement or fee interest, or (ii) the extent of the right granted or (iii) the location of the easement. Rules of contract interpretation apply. In interpreting the grant in a deed, the intention of the parties as gathered from the whole instrument governs.

3) Sometimes, what "sounds" like an easement may actually be a fee ownership interest.

a) See, for example, the case of Severns v. Union Pacific Railroad Co. 101 Cal.App.4th 1209, 125 Cal.Rptr.2d 100 (2002). The Severns case involved these facts:

(i) In 1901, the Bluemles, grantors, handwrote a deed to the California Pacific Railway Company (Railway) by which they agreed to convey a strip of land using the following language: "grant, bargain, sell, convey and confirm unto [Railway] and to its assigns forever, all that certain lot parcel or tract of land..."

(ii) A precise legal description followed. The deed then continued with this language:

"Together with all and singular the tenements, hereditaments and appurtenances thereunto belonging or in anywise appertaining and the reversion and reversions remainder and remainders, rents, issues and profits thereof.

"To Have and to Hold all and singular, the said premises, together with the appurtenances unto the said party of the second part and to its assigns forever. 'Note. It is understood that the above described strip of land herein conveyed, shall be for a right of way, and that said second party, or its assigns shall construct over and all along same, a first class electric railway, and will operate said railway with a service of not less than ten daily trains and that local trains or cars, shall stop, for passengers desiring to get on or off the cars at the south line of said right of way. "Should said railway after being completed and in operation cease thereafter to be operated for a period of six months, then said right of way herein conveyed shall revert to the parties of the first or assigns.

"... the existing three wire fence along the east side of said right of way hereunder conveyed shall ... be moved and set up in first class order along the west line of said right of way and that the said fence shall, from the date of this indenture belong to the party of the second part or its assigns."

b) In 1999, following various conveyances, an ownership interest in nine lots of the original Bluemle property was transferred to the plaintiff Severn by quitclaim. The Plaintiff then brought an action to quiet title to the strip of land. Plaintiff claimed the railroad owned only an easement. The railroad claimed it owned the property in fee.

c) First, the court determined that the deed was not ambiguous. The court therefore interpreted the language of the deed without resort to extrinsic evidence. The court held the deed conveyed a fee simple subject to a condition subsequent. The court interpreted the deed by ascertaining and carrying out the intention of the parties as expressed in the instrument.

(i) To convey a fee, all that is required is the word "grant." The Bluemles used this word. The granting clause did not restrict the grantee to any particular use. The detailed legal description of the land indicated that the land itself was being conveyed, not merely a right to use land. The language granting all "tenements, hereditaments and appurtenances" would be surplusage if only an easement were granted. Reference to a right of way did not appear until later in the document, in a paragraph beginning with, 'Note". This simply described the purpose to which the land would be put. The term, "right of way" referred to the land itself and not the right of passage over it.

(ii) The conveyance also recited what would happen if railroad operations ceased for six months: the right of way would revert to the grantors or their assigns. Fee interests may revert; easements do not. Easements are simply extinguished.

(iii) The court also held that plaintiff's predecessor in interest failed to comply with the Marketable Record Title Act of 1982, which required plaintiff's predecessor to record a notice of intent to preserve the power of termination of the railroad's conditional fee. Therefore, there was no reversion interest and the court quieted title in the railroad company.


(b) Manhattan Beach v. Superior Court, 13 Cal.4th 232, 239, 52 Cal.Rptr.2d 82 (1996) involved a quitclaim deed that in 1888 conveyed a strip of land to a railroad to be used as a right of way "for the construction, maintenance and operation of a steam railroad." The deed did not state that that was the only purpose for which the land could be used.

1) The grantor had owned the land in fee. The deed provided a complete legal description of the property being conveyed, implying the transfer of a fee. On the other hand, the deed referred to the transfer as a "right of way." The deed was not clear as to whether the parties intended that a fee interest or easement be conveyed.

2) Extrinsic evidence from 1888 through 1903 was relied upon to establish the intent of the parties. A divided California Supreme Court ruled, in a 4-3 decision, that the deed granted a fee interest and not an easement, despite the reference to a right of way.

(c) In Machado v. Southern Pacific Transportation Co., 233 Cal.App. 3d 347, 353, 284 Cal.Rptr. 560 (1991), an interest in land was conveyed by a deed which stated that the grantor "does grant ... that certain strip or parcel of land for a right of way for a standard gauge railroad."

1) This language was held by the Court to convey a fee interest, not an easement.
2) The Court reasoned that (i) describing the purpose after the grant emphasized the grant of land, (ii) that the deed did not limit the use of the land to railway use, (iii) that there was no condition subsequent or reverter in the deed, and that (iv) nothing in the deed showed an intent to grant only an easement.

(d) A frequent issue in litigation is the type and extent of the intended easement. Unless there are clear limitations on the permitted use, the owner of an easement may be able to increase or modify the permitted use.

(2) IMPLIED GRANT.
The law may sometimes imply that the parties intended to create or transfer an easement by a grant or reservation, even if there is no written document evidencing such an intent. Such implied easements are an exception to the general rule that easements can be created only in writing or by prescription. Since an easement deprives a property owner of exclusive use of his or her property, implied easements are not favored by the courts. Horowitz v. Noble, 79 Cal.App. 3d 120, 131, 144 Cal.Rptr. 710 (1978). However, easements will be implied in a number of different circumstances, such as the following:
(a) PRIOR USE BY COMMON GRANTOR. In connection (a) with a sale or transfer by a grantor of a parcel that was one of two adjoining parcels held by the same grantor, one of which was used for the benefit of the other, or (b) a division and conveyance of a parcel, one portion of which was held for the benefit of another portion.

1) In these cases, an implied easement will be found to exist if the following conditions are met:

a) Common ownership of a parcel and a transfer or conveyance of one parcel, or a portion of a parcel, to another; and
b) An existing obvious, and apparently permanent, pre-existing use of the quasi-easement by the common owner.

2) An implied easement must be reasonably necessary for the beneficial enjoyment of the land. However, strict necessity is not required. Dubin v. Robert Newhall Chesebrough Trust, 96 Cal.App. 4th 465, 116 Cal.Rptr. 2d 872 (2002). California Civil Code Section 1104 provides that a transfer of real property passes all easements attached thereto, and creates in favor thereof an easement to use other real property of the person whose estate is transferred in the same manner and to the same extent as such property was obviously and permanently used by the person whose estate is transferred, for the benefit thereof, at the time when the transfer was agreed upon or completed.

3) Thus, if Smith owns two adjoining Parcels, Parcels A and B, and obtains access to Parcel B over a road that crosses Parcel A, then when Smith sells Parcel B to Jones, the purchaser will acquire an implied easement to access Parcel B over the road that crosses Parcel A, even though no easement is expressly conveyed and there may be other access to Parcel B.

(b) IMPLIED OR INTENDED BENEFICIAL USE. An easement may also be implied where the grantor leads the grantee to believe that the grantee will have an easement after the transfer, even though there is no prior use.

1) For example, in Maywood Mut. Water Co. No. 2 v. City of Maywood, 23 Cal.App. 3d 266, 270, 100 Cal.Rptr. 174 (1972), a developer transferred all the pipes and equipment for water distribution facility to a water company by an unrecorded deed that did not mention an easement for the facilities. The area where these facilities were located was then deeded to the city for streets. When the developer refused to acknowledge that the water company must have had an easement in the streets for its water distribution facilities, the court found that there was an implied easement for the water facilities and that the city's title to the streets was subject to this implied easement.

2) In Camp Meeker Water System, Inc. v. Public Utilities Com., 51 Cal. 3d 845, 865-866, 274 Cal.Rptr. 678, 799 P.2d 758 (1990), an owner who held title to several adjoining parcels conveyed one of the parcels to a water company together with the water system located on that parcel and all appurtenant easements used in the operation of the water system. At that time, the remaining parcels were not used for the water system and were not mentioned in the deed. The remaining parcels were later sold to another person by means of a deed that did not mention any easements. The court held that the water company had an appurtenant easement across the adjacent parcels formerly owned by the grantor, and the subsequent grantee of the remaining parcels took title to the remaining parcels subject to an easement in favor of the water company, including an easement to drill wells and to install pipes to supply of water to the system.

(3) IMPLIED BY CONVEYANCES UPON DEATH.
An implied easement may be created by will if a testator leaves adjacent parcels of land to different parties. An implied easement may be created even if there is no will. In Larsson v. Grabach, 121 Cal.App.4th 1147, 18 Cal.Rptr.3d 136 (2004), the Court of Appeals held that an easement by implication could be created when an owner of real property died intestate and the property was then divided and distributed to the intestate's heirs by court decree.

(4) REFERENCE TO MAPS AND PLATS.
Easements may be implied with respect to streets, roads and utility lines shown on maps.

(a) Recordation of a subdivision map showing street constitutes an offer to dedicate the streets to the public use.

1) A public easement is established by acceptance of the offer by the public agency or by public use.

2) The conveyance of a parcel by a deed that refers to a recorded or unrecorded map may constitute an implied common law dedication of the streets and roads shown on the map for use by the public. Tract Development Services, Inc. v. Kepler, 199 Cal.App. 3d 1374, 1381-82, 246 Cal.Rptr. 469 (1988).

(b) When a lot being conveyed by a deed is described by reference to a map, the grantee has an easement across other streets in the subdivision that are material to the granted parcel. A private easement may be created even though the offer of dedication is not accepted, or the offer is revoked before acceptance. Anderson v. Citizens' Savings & Trust Co., 185 Cal. 386, 392, 197 P. 113 (1921); Eltinge v. Santos, 171 Cal. 278, 282, 152 P. 915 (1915).

(c) An easement may be implied by representations made by salesmen or in advertisements. If a developer or its agent shows an unrecorded map to the prospective purchasers and expressly or impliedly represent that the purchasers will have access to the property over the streets shown on the map, the purchaser will have a private easement. Petitpierre v. Maguire, 155 Cal. 242, 247-249, 100 P. 690 (1909).

(5) INCIDENT TO LEASEHOLD ESTATE.
Easements may also be implied in favor of the tenant over other property owned by the landlord if they are reasonably necessary for the use or enjoyment of the leased premises. Dubin v. Robert Newhall Chesebrough Trust, 96 Cal.App. 4th 465, 116 Cal.Rptr. 2d 872 (2002).

(a) There is no implied easement for light or air. These easements must be created by express grant.

(b) The party claiming an implied easement has the burden of proving the existence of an implied easement by a preponderance of the evidence. Tusher v. Gabrielsen, 68 Cal.App. 4th 131, 145, 80 Cal.Rptr. 2d 126 (1998).

(6) BY NECESSITY.
An easement by necessity may be created to prevent land that can be used for a beneficial purpose from being landlocked and therefore unfit for occupancy or cultivation.

(a) Public policy favors the productive use of land and discourages the creation of parcels that will be unproductive solely due to a lack of access. Kellogg v. Garcia, 102 Cal.App. 4th 796, 125 Cal.Rptr. 2d 817 (2002).

(b) An implied easement of necessity will therefore exist if two requirements are met.

1) The two parcels must have been owned by a common grantor.

2) The dominant tenement must be completely landlocked with no alternative means of ingress and egress. See Tashakori v. lakis 196 Cal.App.4th 1003 (2011)

(c) Easements created by necessity involve an access road to a parcel that would otherwise be landlocked. See Linthicum v. Butterfield, 175 Cal.App.4th 259 (2009); However, other necessary easements may exist by necessity or by implication (e.g., a parcel that may have an access road but no access for utility lines). See Frederick v. Louis, 10 Cal.App. 2d 649, 651, 52 P.2d 533 (1935).

(d) Generally, easements cannot be acquired against property owned by the government. However, an easement of necessity may be created against the government when the governmental agency is the common grantor. Kellogg v. Garcia, 102 Cal.App. 4th 796, 806, 125 Cal.Rptr. 2d 817 (2002).

(e) An easement by necessity only continues as long as the necessity exists. If some other reasonably sufficient access is available, the easement by necessity ceases. See Kellogg v. Garcia, supra. However, as long as the necessity continues, the owner of the dominant tenement cannot acquire prescriptive rights to extinguish the easement.

(7) BY PRESCRIPTION.
A prescriptive easement may arise as the result of the use of property of another.

(a) IN GENERAL. A prescriptive easement is created by a use of the property of another that is (a) open and notorious use, (b) continuous and uninterrupted for at least five years, (c) hostile to the true owner, (d) exclusive and under claim of right, and (e) accompanied by the payment of taxes if taxes are separately assessed. See Cal. Civ. Code §§ 1006, 1007; Cal Code of Civ. Pro § 321.

1) Whether a prescriptive easement has been created is a question of fact. The party claiming a prescriptive easement has the burden of proving the existence of each required element for the creation of a prescriptive easement.

a) A prescriptive easement cannot be obtained in real property owned by a government entity. Cal Civ. Code § 1007.
b) A prescriptive easement cannot be obtained for light or air.

2) A prescriptive easement cannot be obtained if the use is permissive. Prescriptive easements are only created when the use of the easement unlawfully infringes on the rights of the owner of the servient tenement (i.e., a trespass) and the owner of the servient tenement fails to interfere when he or she has the legal right to do so.

3) A prescriptive easement cannot confer an exclusive right of possession. See Section III.C(7)(b) below.

4) A prescriptive easement can be either in gross or appurtenant to other land. For example, public utility companies and airports may acquire prescriptive easements in gross.

5) An easement that is used by both private individuals and by the public in general may be both a private easement and a public easement, depending on the use. O'Banion v. Borba, 32 Cal. 2d 145, 151-153, 195 P.2d 10 (1948). Applegate v. Ota, 146 Cal.App. 3d 702, 710, 194 Cal.Rptr. 331 (1983).

6) There is no requirement that a person who acquires a prescriptive easement compensate the property owner for the easement. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564, 199 Cal.Rptr. 773, 676 P.2d 584 (1984).

(b) NO EXCLUSIVE POSSESSORY INTEREST. Easements are a right to use land, not the right to possess land. Prescriptive easements are always nonexclusive and so cannot create an exclusive right of possession. Mehdizadeh v. Mincer, 46 Cal.App.4th 1296, 54 Cal.Rptr.2d 284 Cal.App.2. (1996). Silacci v. Abramson, 45 Cal.App. 4th 558, 564, 53 Cal.Rptr. 2d 37 (1996).

1) Mehdizadeh involved a dispute between neighbors which followed their discovery that a fence built many years earlier was not located on the legal boundary between their properties. The Plaintiff could not prove adverse possession because he did not pay taxes on the disputed property. The trial court granted the Plaintiff a prescriptive easement, but the Court of Appeals reversed and quieted title in the Defendant, holding that a claimant who cannot satisfy the requirements for adverse possession may not receive a prescriptive easement which extends so far that it becomes the equivalent of a fee interest and dispossesses the record title owners of part of their property. The court rejected the theory of an implied boundary line because there was no uncertainty as to where the true boundary was located.

2) In Silacci, the plaintiffs brought an action for declaratory relief against their neighbors, alleging that land fenced and used as a backyard by defendants actually belonged to plaintiffs. Defendants cross-complained to quiet title to a prescriptive easement. The trial court found that defendants had an exclusive prescriptive easement over the fenced-in portion of plaintiffs' property. The Court of Appeals reversed, holding that permitting the defendants to acquire possession of plaintiffs' land by calling it an exclusive prescriptive easement would pervert the classical distinction in real property law between ownership and use.

3) In Kapner v. Meadowlark Ranch Ass'n, 116 Cal.App. 4th 182, 11 Cal.Rptr. 3d 138 (2004), the Plaintiff built a driveway, gate and perimeter fence that encroached on the defendant's property. The Court held that the use of the land was not in the nature of an easement. Instead, he enclosed and possessed the land in question. The Court held that the Plaintiff was not entitled to a prescriptive easement, stating that adverse possession may not masquerade as a prescriptive easement.

4) In Harrison v. Welch (2004) 116 Cal.App.4tth 1084. 11 Cal.Rptr.3d 92 (2004), the defendant had installed a woodshed, trees, railroad-tie planter boxes and an irrigation system on plaintiff's property, which had been a vacant lot. The purchasers of the vacant lot brought an action to quiet title to the portion of the lot being encroached upon. The Court held that the exclusive use of the neighbor's land, which had the effect of preventing the neighbor from using the land he had purchased, did not ripen into a prescriptive easement and that the plaintiff’s action for injunctive relief was not barred by the statute of limitations.

5) Sometimes, however, a user can acquire an exclusive easement by prescription. In Otay Water Dist. v. Beckwith, 1 Cal.App.4th 1041, 1048, 3 Cal.Rptr.2d 223 (1991), the court allowed an exclusive prescriptive easement for a reservoir based on health and safety reasons, holding that an exclusive prescriptive easement to a granted water district for use of property as reservoir was not tantamount to fee estate so as to require the district to satisfy elements of adverse possession rather than prescriptive easement. The district's use of property was restricted to reservoir purposes only and the district was prohibited from increasing burden placed upon servient estate.

6) See also the discussion of easements created by equity to balance hardships at Section III..C.(12), below.

(c) ELEMENTS OF A PRESCRIPTIVE EASEMENT: A prescriptive easement will only be found to exist if all the following elements exist:

1) Open and Notorious. "Open and notorious" refers to the requirement that the owner have notice that the user is using the land in a way that might ripen into a prescriptive easement.

a) The use must be sufficiently visible and open that it would be apparent to anyone viewing the servient tenement and the use being made by the claimant. Wood v. Davidson, 62 Cal.App. 2d 885, 890, 145 P.2d 659 (1944).

(i)
In Wood, the plaintiffs claimed the right to 75% of the water from a spring on an adjoining parcel because their predecessor in title had reserved the rights to the water from the spring when he conveyed title to the property on which the spring was located. Later, the adjoining property was acquired by the defendants, who began using all the water from the spring during the summer months and dug trenches and ditches to carry the spring water to various portions of their property. The plaintiffs apparently had no knowledge that the defendants were using the water.

(ii) The court found that the defendants had acquired the right to take the water from the well between April 1 and September 10 of each year, since their use was open and visible, whether or not the plaintiffs knew about their use, stating that it is sufficient that the user "unfurl his flag on the land, and keep it flying, so that the owner may see, if he will, that an enemy has invaded his domains, and planted the standard of conquest."

b) The case of Field-Escandon v. Demann, 204 Cal.App. 3d 228, 236, 251 Cal.Rptr. 49 (1988), the court refused to find notice of the prescriptive use of a subsurface sewer drain, even though the servient tenement was lower in grade than the property owned by the claimant and the only access to a public sewer by gravity would be across the servient tenement. However, after referring to hardship considerations, the court, allowed the sewer line, which has been in place for 29 years, to remain in place, finding that the sewer line, as a permanent trespass and that the claimant's action to compel removal of the sewer line was barred by the statute of limitations.

2) Continuous and Uninterrupted. To create a prescriptive easement, the easement must be used continuously without interruption for five years.

a) "Continuously" does not mean daily. The determination of what constitutes continuous use depends on the nature of the use.
b) The use is sufficient if it occurs on those occasions when it is necessary for the convenience of the user; for example:

(i) Occasional use of a 15 foot strip of an adjoining parcel for parking purposes at any time by the claimants and their predecessors is wholly inconsistent with the right of the owner of the 15 strip to use it at will for entry upon their property and will result in a prescriptive easement. Ross v. Lawrence, 219 Cal.App. 2d 229, 233, 33 Cal.Rptr. 135 (1963).

(ii) The use of a roadway in an intermittent basis is sufficient. Warsaw v. Chicago Metallic Ceilings, Inc., 35 Cal. 3d 564, 570, 199 Cal.Rptr. 773, 676 P.2d 584 (1984) [easement used by delivery trucks only as often as deliveries were necessary]. See Harrison v. Bouris, 139 Cal.App. 2d 170, 173, 293 P.2d 98 (1956) [roadway used "no less than 10 times a year"].

3) Hostile. Hostile or adverse mean the use is without the permission of the owner.

a) "Adverse" use means it is not in subordination to the rights of the owner of the land, is not with the permission of the land owner, and is wrongful and open. Cleary v. Trimble, 229 Cal.App. 2d 1, 6, 39 Cal.Rptr. 776 (1964)
b) "Hostile" use is adverse to the owner and without recognition of the rights of the owner.

(i) The user's claim of a right to use the property adversely to the rights of the owner of the servient tenement must be communicated to the property owner. The owner must be aware of the facts that give notice that a prescriptive easement might arise unless the owner of the servient tenement takes some action to prevent the use.

(ii) The use of property in a way that clearly displays the user claims a right of use is sufficient to establish that it is adverse and hostile to the rights of the owner of the property, and that the owner has constructive notice of the adverse claim. Field-Escandon v. Demann, 204 Cal.App. 3d 228, 235, 251 Cal.Rptr. 49 (1988)
c) Use by mistake can be hostile if the claimant mistakenly believes that he or she owns the property. The claimant only has to be acting without recognition of or regard to any rights of the actual owner, and the claimant's own testimony is sufficient to establish the necessary level of adversity. Montecito Valley Water Co. v. City of Santa Barbara, 144 Cal. 578, 596-597, 77 P.1113 (1904). Thus, if a claimant mistakenly believes he is the owner, his possession and use is adverse unless there is substantial evidence that the claimant was aware of the potential competing claim by the record owner and either expressly or implied indicated an intention to claim ownership only if the dispute regarding record title was decided in his favor. Gilardi v. Hallam, 30 Cal. 3d 317, 178 Cal.Rptr. 624, 636 P.2d 588 (1981).

(i) The element of use "under a claim of right" does not require the claimant to believe the use is legally justified. It is sufficient if the property was used without permission of the owner of the land. Felgenhauer v. Soni, 121 Cal.App. 4th 445, 17 Cal.Rptr. 3d 135 ( 2004).

a. Felgenhauer was an action to quiet title to prescriptive easements over a neighboring property. Plaintiff's property was a restaurant, and Defendant's property was a bank parking lot lying between the back of the restaurant and a public alley. Plaintiffs or their lessee operated the restaurant from 1974 through 1978, and deliveries were made to the restaurant by trucks crossing over defendant's parking lot from the public alley to reach the back of the restaurant. This use ended in 1978. In 1982, they reopened their restaurant and deliveries from the alley over the parking lot resumed. In 1984, they sold their business, but not their land, to a new operator, who leased the Felgenhauer land from them. In 1988, the bank constructed a fence around the parking lot but at the request of the restaurant operator the bank installed a gate in the fence so that deliveries to the restaurant could continue. The Defendant, Soni, purchased the parking lot property in 1998. In 1999, Defendants notified the Felgenhauers that they intended to cut off access to the restaurant from the parking lot. The court held the owner of the restaurant property had acquired a prescriptive easement over the parking lot property as a result of the open and notorious use for between 1982 and 1988.

b. The court held that claim of right, or hostile use, simply means the property was used without permission of the owner of the land. The subjective intent of the user was not relevant.

c. Once the easement is established, the use continues as a matter of legal right and the land owner's permission is irrelevant.

(ii) If an easement for a road is erroneously paved outside the boundaries of the easement, a prescriptive easement may exist for the area outside the boundaries of the easement even though the claimant mistakenly believed that the paving was located within the boundaries. Miller v. Johnston, 270 Cal.App. 2d 289, 293, 75 Cal.Rptr. 699 (1969).

d) A prescriptive easement cannot be obtained if the use is permissive.

(i) A use of the type normally allowed by one neighbor to another as a friendly gesture or accommodation is a permissive use and will not create a prescriptive right.

(ii) Such permissive uses might include a short cut over a neighbor's property, (Clarke v. Clarke, 133 Cal. 667, 668-671, 66 P. 10 (1901)), or the use of a narrow strip of land on an adjoining neighbor's property for turn-row purposes (turning around vehicles towing agricultural equipment and machinery). Case v. Uridge, 180 Cal.App. 2d 1, 6, 7, 4 Cal.Rptr. 85 (1960).

e) Statutory procedures were adopted in between 1963 and 1965 to allow land owners to post or record a notice that the land is used by the public or a private party with permission. Cal. Civ. Code §§ 813, 1008.

(i) The recorded notice is conclusive evidence that subsequent use of the land is permissive, thereby defeating a claim of prescriptive easement by the public.

a. In order to be effective against private users, the recorded notice must also be mailed to the private user. Cal. Civ. Code § 813.

b. Section 1008 of the Civil Code prevents the creation of a prescriptive easement if the property is prominently posted (every 200 feet) with a notice to the effect that the right to pass is permissive and subject to control by the owner. The notice must be posted by the owner of the property. The notice is not effective if it is posted by a tenant. Aaron v. Dunham, 137 Cal.App. 4th 1244, 41 Cal.Rptr.3d 32 (2006).

(ii) Prior to 1965, the posting of signs purporting to make the use a permissive use was not sufficient. Pratt v. Hodgson, 91 Cal.App.2d 401, 204 P.2d 934 (1949) [sign posted at or near the right of way reading ‘Private Entrance, Revocable to Pass at any Time’ insufficient to make use permissive when sign is ignored and not enforced]. Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P.2d 50 Cal. (1970) ["No Trespassing" did prevent public from acquiring public easement to a beach]. Posting may still be insufficient unless the statutes are strictly complied with.

(iii) Relocation of a prescriptive easement to a new location that is mutually agreeable to the owners of both the dominant tenement and the servient tenement does not convert the use to a permissive use. McCarty v. Walton, 212 Cal.App.2d 39, 27 Cal.Rptr. 792 (1963).

4) Exclusive and Under Claim of Right. Exclusive use under a claim of right does not require the user to have a bona fide belief he or she has a right to begin using the property.

a) Adverse use always begins as a trespass or unauthorized use. The claim may be deliberately wrongful or based on mistake. Claim of right to use the land means the user intends to use the land. See the discussion of Hostile, at Section II F(6)(c)(iii), above).

b) Exclusive use is not required in the context of prescriptive easements. A claimant's right will be considered prescriptive as long as it is based on his or her own use and is not based on or derived from rights held by others. Marangi v. Domenici, 161 Cal.App.2d 552, 326 P.2d 527 Cal.App. (1958)

5) Payment of Taxes. In most cases, payment of taxes is not required in order to claim a prescriptive easement, because taxes are not usually separately assessed against the easement. Mehdizadeh v. Mincer, surpa 

(8) COVENANTS.
Under general legal principles, an easement is not created by a recorded covenant unless the covenant is created (a) in connection with an agreement between owners or (b) in connection with a conveyance of land. (a) To qualify as a covenant running with the land, there must be a recorded instrument that meets the following requirement of California Civil Code Section 1468: (b) The land to be affected and the land to be benefited must both be described.

(c) It must expressly state that it is binding on successors and assigns. (d) The covenant must relate to the use, repair, maintenance, or improvement of, or payment of taxes and assessments on, the land described. (e) An easement in favor of a city or county may be created by recorded covenant pursuant to city or county ordinance. Cal. Gov't Code §§ 65870 et seq. Such ordinances allow the municipality to acquire the benefit of an easement without the burdens of a dedication.

(9) DEDICATION.
The dedication can either be pursuant to statute (e.g., recordation of a subdivision map pursuant to the Subdivision Map Act) or by conduct.

(a) On recordation of a subdivision map, a public easement arises in the areas shown on the map as street. The adjacent property owners own the fee title to the center of the street. See Cal. Civ. Code 831. If the street is abandoned, any private easements that arose survive.


(b) Action or conduct may result in a public dedication. Use of private property by the public without sufficient objection and interference by the property owner may result in a dedication. See Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P.2d 50 Cal. (1970) ["No Trespassing" signs did prevent public from acquiring public easement to a beach]. (c) A sale of lots by reference to a recorded or unrecorded map may be sufficient to accomplish a dedication of the streets and roads shown on the map to the public. In Hanshaw v. Lona Valley Road Association, 16 Cal.App.4th 471, 11 Cal.Rptr.3d 357 (2004), the county only accepted a dedication of part of a road shown on a recorded map, rejecting the offer of dedication of the other parts. The county had no duty to maintain the part of the road that it rejected, but the entire road became a public road through common law dedication as the result of the intention of the owner to dedicate the road and the subsequent use of the road by the public. See also Section III.D(e) above.

(10) CONDEMNATION.
Public agencies can condemn either a fee title or an easement for public purposes, such as a street or highway. In addition, Section 1001 of the California Civil Code permits a private owner of real property to acquire an appurtenant easement over adjoining property to obtain utility service to the owner's property, including drainage.

(a) In the case of a private condemnation for utilities, there must be a strong showing of necessity. Linggi v. Garovotti, 45 Cal. 2d 20, 26, 286 P.2d 15 (1955). (b) The rationale is the beneficial use of property is a "public use," and that such private condemnations do not represent the use of the condemnation power for private purposes. L & M Professional Consultants, Inc. v. Ferreira, 146 Cal.App.3d 1038, 194 Cal.Rptr. 695 (1983) [private condemnation of storm drain and sewer facilities by a private developer of an apartment building complex].

(11) ESTOPPEL.
Action or conduct by the owner of a dominant tenement in reliance of the actions or conduct of the owner of the servient tenement can sometimes cause an easement to arise under an estoppel theory, or on the theory of a fully executed oral agreement, even though the statue of frauds is not satisfied. (a) For example, in Rubio Canon Land & Water Ass'n v. Everett, 154 Cal. 29, 96 P. 811 (1908) a seller orally agreed to sell an adjoining parcel to a buyer and to grant an easement for water pipeline over the parcel to be retained by the seller. The buyer built a water distribution system on the parcel to be purchased. When the seller subsequently conveyed title to the buyer, no easement was granted for the pipeline on seller’s retained parcel. Seller later sold the retained parcel to the defendant without mentioning the unrecorded easement. The Court held that the buyer had obtained an easement from the seller and the defendant took title to its parcel subject to the unrecorded easement. (b) The same result may occur if a licensee expends time and money improving a licensed area in the reasonable belief that the license will not be revoked. Cooke v. Rampon, 38 Cal.2d 282, 239 P.2d 638 (1952) [License to use common road held irrevocable when licensee expends money to improve and maintain the common road]. (c) The sale of a parcel by reference to a map that shows streets owned by the seller providing access to the property may estop the seller from denying that the buyer acquired an easement in the street, even if there are other means of access to the property. The buyer can rely on the map showing the street, and on the seller's implied representation that the street will be available to the buyer. Petitpierre v. Maguire, 155 Cal. 242, 246, 100 P. 690 (1909).

(d) An easement by estoppel will also be created where there is no map but the streets are laid out by stakes and markers on the ground with express or implied representations that the streets so shown will be available for the buyer. Prescott v. Edwards, 117 Cal. 298, 49 P. 178 (1897). See also Section D(e) above.

(12) EQUITY.
An easement may be created by the court's exercise of its equity powers in order to balance or avoid unreasonable hardship. (a) In Hirshfield v. Schwartz, 91 Cal.App.4th 749, 110 Cal.Rptr.2d

861 (2001), the court declined to enjoin a continuing encroachment by a neighbor’s block wall, a portion of a sand trap on the neighbor’s private golfing facility, and underground water and electrical lines and motors and motor housing because (1) the encroachments had existed for a long period and were installed with an innocent belief that the wall demarked the boundary between the two properties, (2) removal of the encroachments would cause irreparable harm, and (3) there was little harm to the servient tenement. The Court recognized that it was departing from the established law that prescriptive easements cannot result in exclusive possession.

(b) A similar result was reached in Miller v. Johnston, 270 Cal.App. 2d 289, 303-308, 75 Cal.Rptr. 699 (1969), where the paved portion of an access easement was well beyond the boundary of the access easement and it was extremely difficulty and impractical to drive a motor vehicle of normal size along the true recorded easement. The court allowed the use to continue, notwithstanding that some years earlier the claimant has signed an agreement relinquishing a claim to a prescriptive easement and acknowledging that he had only a revocable license and that his issue was permissive.  (c) See also Field-Escandon v. Demann, 204 Cal.App.3d 228, 251 Cal.Rptr. 49 Cal.App. (1988), in which the court balanced hardship to deny the plaintiff’s demand that his neighbor remove a sewer line running beneath the plaintiff’s property. There was no prescriptive easement because the use was not open and notorious. The existence of a building permit for the sewer line did not give notice. However, the potential hardship to the neighbor was greatly disproportionate to hardship to plaintiff caused by the continued existence and use of sewer line.  (d) The case of Linthicum v. Butterfield, 175 Cal.App.4th 259 (2009), involved multiple parcels in the Los Padres Forest that would be land-locked if the existence of an easement over a road connecting the parcels to San Marcos Road were denied. While the court could have fond easements by prescription and by necessity, the trial relied on a balancing of the equities and the appellate court relied on the power of the court to create equitable easements, in ruling that an access easement existed over the road for the benefit of the multiple parcels that had historically used it.

(13) PARTITION.
An easement can be created by a court-ordered partition. Partition is a legal action to divide one piece of property between two or more owners. When the property is divided, the court has the power to create an easement when it would be of benefit to the parties. See Larsson v. Grabach, supra, and "Implied by Conveyances upon Death" at Section III.C(3) above.


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