DIRT DEVELOPMENT for April 20, 2010
Daniel B. Bogart
Donley and Marjorie Bollinger Chair in Real Estate Law
Chapman University School of Law, Orange, California

EASEMENTS; TERMINATION;  ADVERSE POSSESSION: Owner of servient tract failed to establish that he terminated the easement by adverse possession, where he had erected transitory impediments to use and acted in an otherwise unneighborly manner.

Gellerman v. Aldrich, 2010 WL 895102 (Cal. Ct. App. March 15, 2010) (Not officially published)

Gellermans’ land was the dominant tract to an access easement; Aldrich’s land was the servient tract.  The easement was created and recorded by predecessors in interest in 1961. The opinion states flatly that, but for the easement, “the Gellermans’ property would be landlocked.”

Gellermans acquired the property in 1998; it had previously changed hands several times, beginning with the original subdivider and then to a number of family members. A road existed along the easement on the servient tract.  However, “in 1983 a washout on the road caused damage to the Aldrich property, and after that the road was not driveable.”

Bruce Gellerman, Gellermans’ immediate predecessor in title testified that, although he did not drive across the road after the washout, he continued, from time-to-time to walk the property. The easement covered not only the Aldrich tract; it also ran along property owned by other neighbours, including the McGregors.  “At some point a gate was placed on the McGregor property, but he [Bruce Gellerman] was always able to pass around it, so it did not bother him.” The opinion also discloses that both Aldrich and McGregor placed relatively minor or temporary physical obstacles on the property, which Gellerman walked around or stepped over.  (For example, McGregors placed a storage container on the easement.) Both servient tract owners displayed what might be described as “rude” behaviour to the owners of the dominant tract (at least according to the facts in the opinion). 

The nature of the obstructions became a bit more significant over time. Aldrich placed a wire fence on the property in 2006 “which prohibited access over the easement.  In 2007 the wire fence was cut to permit property inspection.”

This case describes shifting sets of facts, and different persons appear in the opinion to tell a somewhat different story.  Aldrich’s mother makes an appearance, and according to the opinion explained that her neighbour, Mr. McGregor installed a gate that was meant to exclude everyone from his property.  She nevertheless saw hikers on the easement road.  Aldrich’s mother also met Bruce Gellerman on the property at one point.  She testified that she did not know of any other obstructions on the Aldrich property, on which she lived from 1973 until 1997.

Aldrich lived on the property from the time of his birth. (one imagines that Aldriche’s visceral connection to his property was quite real.) Aldrich testified that he did not see anyone using the property between 1997 and 2002.  He placed “No Trespassing” signs on the servient tract in 1997, and also placed what the court describes as a lightweight chain across the easement in 1997.  The chain was short lived, and was removed in 2000.  Aldrich erected a fence on his property in 2006.  Apparently he erected the fence after seeing some surveyors on his property, and “commanded them to leave.”

Gellermans brought suit against Aldrich and McGregor alleging interference with easement. Aldrich responded that the easement was terminated by adverse possession and abandonment.  (Aldrich dismissed the latter defence during the pendency of the case.) 

The trial court found for Gellermans and enjoined any further obstruction of the easement. Aldrich and McGregor were ordered to remove all obstructions to the easement including storage containers, concrete pillars at the gates to the easement, and fence.   To add insult to injury, the trial court granted costs for attorneys’ and expert witness fees, and further found that the “oppressive” behaviour of Aldrich entitled Gellermans to punitive damages.

The court of appeals agreed with the trial court that Aldrich failed to establish adverse possession of the easement, but it reversed the trial court on the issue of damages.

According to the court, the owner of a servient estate may use the easement area so long as he does not unduly burden the easement.  At some point, however, the servient tract holder may so interfere with the use by the owner of the dominant tract that the behaviour may lead to a successful claim of adverse possession. California statute (Code Civ. Proc. § 325) establishes a five-year period. 

In order to make his case, Aldrich would have to show that “under an adverse claim of right, with notice thereof to the owner of the dominant tenement, continuously during a period of five years” he used the servient tract “in such a manner as to obstruct its use for easement purposes.” Quoting Ross v. Lawrence, 219 Cal. App. 2d 229 (Cal. Ct. App. 1963). According to the court, these issues are one of “fact” and as a result, the court was interested only in whether the trial court had sufficient evidence with which to reach its conclusion.

Aldrich argued that the trial court misunderstood and misapplied easement law, by requiring the “obstructions” necessary to constitute adverse possession to be permanent. In Gellerman, all of the interferences upon which Aldrich relied to make his adverse possession claim were essentially removable and transitory. 

The trial court judge used the word “permanent” at different times in the course of its interaction with attorneys, during the litigation and at hearing - when describing the meaning of hostility in adverse possession doctrine. The trial judge explained that he did not believe that mere unneighborly behaviour [verbal threats] “should ever give rise to adverse possession of an easement when it’s otherwise not – there’s not permanent structures being put on the easement.”  [These are the words of the trial judge, repeated in the appellate opinion.]

The attorneys for Aldrich argued that the trial court’s ruling had the effect of setting aside the rules of adverse possession, because “you can’t get adverse possession where the road has slipped out so they don’t want to use it; therefore, your blocking it is not hostile because of the slip out.” In other words, the attorney viewed the ruling as saying that if the road has “slipped out” and become unusable, it cannot be adversely possessed.  The trial court, and the court of appeals, disagreed.

The court of appeals, in an act of generosity to the trial court, explained what it believed the trial court must have really meant in its various verbal statements on the nature of permanence of structures and obstructions to the adverse possession argument: “The court did not find an insufficient showing of adverse possession based on an assumption that a permanent structure was required to meet the claimants burden of proof.  The point of the court’s comments at the hearing was that if the acts of the servient tenement holder did not actually preclude the use of the easement, they were insufficient to constitute adverse possession.”  Had the owner of the servient tract owner erected a truly permanent structure blocking easement use, this would certainly have qualified.  Presumably, by this logic, a continued series of interferences that obstructs use of the easement would do the trick, even if individual obstructions were transitory in nature.

Adverse possession cases are by nature fact intensive.  At one point, Aldrich argued that Gellermans had notice of the adverse use because, among other things, Aldrich had placed a chain across the easement.  Adverse possession requires that the possession be “open”—and the court understands this to mean that the property owner must have notice (whether actual, constructive or inquiry.) The court noted, however, that Aldrich removed the chain “around 2000.” It was simply unclear if Gellerman had even seen the chain.  And if Gellerman saw it, it was placed in such a way that a pedestrian could walk over it without effort.  The chain would therefore not signify that the owner of the servient tract was asserting possession over the easement area. This is enough to suggest that notice was lacking.

Gellermans were awarded $78,659 in damages.  The courts of appeals stated that it was not clear what portion of this amount was intended to be compensatory and what portion punitive.  That the Gellermans should receive damages was not really in doubt.  What was problematic was that the award apparently included Gellermans’ attorneys’ costs and expert witness fees.  The court rejected this inclusion, maintaining the American rule that parties bear their own costs, absent a statute or agreement to the contrary. Furthermore, this was a suit based in the interference of a property right, and not a tort. 

The court also explained that, to award punitive damages, the trial court must have discovered Aldrich acting in an “oppressive” manner, and then determined and amount of money that bears a reasonable and proportionate relationship to the behaviour. According to the court, sufficient evidence existed for the trial court to find oppressive behaviour.  Gellermans tried repeatedly to negotiate and to settle out of court.  Furthermore, Aldrich was aware of the easement and continued with a pattern of interference.

The court remanded to the trial court for a determination of reasonableness and proportionality of damages.

Reporter’s Comment 1: Aldrich dropped his argument that Gellermans abandoned the easement.  This makes sense.  The usual rule is that “mere non use” of an easement does not constitute abandonment.  The owner of the easement must affirmatively renounce its interest or at the least, take steps significantly inconsistent with the easement.  Otherwise, an easement may lie dormant for many, many years. In this case, there is no suggestion that Gellermans took steps inconsistent with the easement.  Gellermans did not cause the “wash out”; this was an act of nature. Afterwards, to the extent Gellermans used the easement, Gellermans did so on foot.  This is consistent with the easement to the extent the property changed as a result of the wash out.

Reporter’s Comment 2: The opinion quotes the trial court to the effect that mere letters telling the owner of the dominant tract to stop using the easement are not sufficient to demonstrate hostility.  Something concrete is required.  (Indeed, something actually “concrete” is preferred.)  The reporter agrees that obstructions are typically viewed as physical.  But he wonders if all jurisdictions would be as stingy with the owner of servient tract.  Just how determined must the owner of the servient tract be? A letter, combined with verbal abuse making passage along an easement unpleasant, and a gate, even if it can be circumvented, sounds to the author like a pretty good demonstration of hostility. Hostility is sometimes characterized in this way: “I know the property (or property interest) is not mine but I am taking it, or obstructing it, anyway.”  If Aldrich did not cross the line, he may have come closer than the court was willing to admit. 

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