DIRT DEVELOPMENT for October 23, 2009
Daniel B. Bogart
Donley and Marjorie Bollinger Chair in Real Estate Law
Chapman University School of Law, Orange, California
EASEMENTS; CREATION; “EQUITABLE EASEMENT:” Despite absence of grounds for an implied easement, California court grants equitable easement to landlocked property owners.
Linthicum v. Butterfield, 95 Cal. Rptr. 3d 538 (Ca. Ct. App. 2009)
This dispute originates in 1891, when federal government granted a large tract of land to a Mr. Thomas Bush in Santa Barbara County, California. The property is located adjacent to the Los Padres National Forest.
The government essentially divided the property into ten separate parcels, and patented parcels 2 through 10 to Mr. Bush. The government kept parcel 1. The opinion is unclear on several key facts. Here is the first: did parcels 2 through 10 have separate access to a public road at the time they were granted to Bush? The opinion reports that in 1943, “Griswold obtained parcels 2 through 10. A public road, San Marcos Road, gave Griswold direct access to his parcels.” As the reporter notes below, a true easement by necessity arises if the severance of parcels gave rise to the necessity – in other words, if the grant from the government to Bush landlocked the parcels. The opinion is unclear.
What is clear is that Griswold wanted additional access to San Marcos Road for his parcels. He therefore negotiated a special use permit (SUP) from the U.S. Forest Service over the retained parcel 1. This SUP granted Griswold a 12 foot right of way roadway.
Over the next decades, parcels 2 through 10 changed hands, both as a block and in individual units. The Forest service reissued the SUP providing for the roadway over parcel 1 when the entire block was sold to Hyde in 1949. Hyde sold individual parcels beginning in 1958 to different purchasers, each time reserving an access easement over the property sold for the benefit of property he retained. Hyde was not entirely accurate in his sales. At one point, he conveyed parcels 9 and 10 to Ygnacio, and in so doing purported to grant easements over parcels 2 and 8. However, at this point in time, as the opinion related, Hyde had already sold parcels 2 and 8.
Eventually Butterfields purchased parcel 6. (The lawsuit involved owners of other parcels, but Butterfields are named defendants, so the discussion of the case will focus on them.)
Throughout this entire period, the Forest Service retained ownership of parcel 1. Furthermore, after the date Hyde began selling the individual parcels, none of the individual grantees of parcels 2 through 10 sought reissuance of the SUP for a roadway across parcel 1. But in 1998, the Forest Service finally sold parcel 1, conveying the land to Jensen. Linthicum purchased parcel 1 in 2000.
The opinion is unclear on a second important fact. By the time the defendants in the case obtained their individual parcels, the only access to San Marcos Road was apparently through and across parcel 1. The opinion is not clear as to when these parcels lost access that Thomas Bush had to San Marcos Road at the time of the original land patent. Butterfields testified that in 35 years of ownership of their parcel, they had used parcel 1 to reach the Road without obstruction or interference. Other owners made similar statements. All said that without the right to reach the public road, their parcels would be inaccessible and valueless. One thought that he had a “lawful easement” across lot 1. One of the defendants had been crossing parcel 1 for nearly 60 years without impediment.
A forest service employee testified on behalf of the defendants that, in his opinion, the rights granted under the SUP did not die when Hyde began transferring the parcels. The SUP was still valid “and simply needing to be reissued.”
During the course of litigation, experts for the defendants testified that it would be onerous to build alternate access to parcels 2 through 10, and that obtaining county approval for any of the alternatives was uncertain. One possibility required the creation of a huge 40 foot retaining wall and the moving of some 40,000 cubic yards of earth.
Eventually, the judge visited the property at the request of the parties. The judge found that the access across parcel 1 was the only real possibility for parcels 2 through 10. The trial court therefore quieted title in the defendants to a 66 foot wide right of way over parcel 1. Although the California Court of Appeals remanded on factual issues (the appropriate width of the right of way) it affirmed the primary result of the trial court. The court of appeals found that the defendants had “an equitable easement” across parcel 1.
The court of appeals noted that in California a court may create an easement in equity by refusing to enforce a landowner’s right to eject a trespasser. The court will do so after “balancing the equities”: “the hardship to defendant by granting the injunction must be greatly disproportionate to the hardship caused plaintiff by the continuance of the encroachment, and this fact must clearly appear in the evidence to be proved by defendant.” In addition, defendant trespasser will receive an equitable easement only if it has clean hands. The court stated that it would not create an easement in equity if such an order would cause irreparable harm to the plaintiff – the owner of parcel 1.
In “doubtful” cases, according to the court, the injunction will be granted. However, according to the court, the facts in Butterfield were not doubtful. The court stated that -- given the trial court’s physical visit to the site and expert testimony – there was no alternative access to the property. Further, the trial court found that allowing the easement barely affected the landowner.
Furthermore, the court of appeals stated that it was appropriate in granting the equitable easement to determine who among the parties “is responsible for the dispute.” In this case, the landowner, Linthicum purchased parcel 1 with knowledge that owners of parcels 2 though 10 were and had been using parcel 1 for access. That must have been factored into the price. The landowner then turned around and sought to bar the access to parcels 2 through 10.
The court was far more generous to the defendants. Owners of parcels 2 through 10 could have discovered during their years of ownership that they did not have rights to cross and have taken steps while the property was still in government hands to obtain the SUP. In essence, the defendants were negligent. But the court stated “The doctrine [of equitable easements] presumes the defendant is a wrongdoer. It hardly could be applied if a showing of some negligence is in every case enough to defeat its application.”
The court then declined to award damages. It stated:
“It is true that when the trial court creates an easement by denying an injunction, the plaintiff is ordinarily entitled to damages. (See <file:///http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.10&serialnum=1953113852&fn=_top&sv=Split&tc=-1&pbc=3D2B624F&ordoc=2019193155&findtype=Y&db=661&vr=2.0&rp=%2ffind%2fdefault.wl&mt=51>Christensen v. Tucker, supra, 114 Cal.App.2d at p. 559, 250 P.2d 660 [the court may deny an injunction and compel plaintiff to accept damages].)
Here Linthicum testified the financial impact of the roadway to parcel 1-A exceeds $900,000. But that amount is based on the theory that the roadway prevents all development, a theory the trial court expressly rejected. Instead, the trial court found the roadway did not prevent Linthicum from fully developing his parcel.
Robert Bjorklund and John Butterfield testified that they valued the roadway at $12,000. But there is nothing in the record that compelled the trial court to accept their evaluation.
“The trial court cannot award damages in the abstract. As plaintiff, Linthicum has the burden of proof on damages. (See Wardrop v. City of Manhattan Beach (1958) 160 Cal.App.2d 779, 791, 326 P.2d 15; <file:///http://web2.westlaw.com/find/default.wl?tf=-1&rs=WLW9.10&serialnum=1951112940&fn=_top&sv=Split&tc=-1&pbc=3D2B624F&ordoc=2019193155&findtype=Y&db=661&vr=2.0&rp=%2ffind%2fdefault.wl&mt=51>Sherman v. Associated Telephone Co. (1950) 100 Cal.App.2d 806, 808, 224 P.2d 846.) Linthicum points to no credible evidence of the amount of damages. Under the circumstances, the trial court did not err in failing to award any.”
Reporter’s Comment 1: There is more to this opinion, but the reporter would like to focus on the question of easements. An easement is an interest in real property and ordinarily must be written and meet the requirements of the Statute of Frauds. However, in limited circumstances, an easement may be implied. There was no express appurtenant easement in favour of the owners of parcels 2 through 10; thus these property owners were forced to find a right in an implied easement or persuade a court to create an easement in equity.
Reporter’s Comment 2: The problem for plaintiffs, right off the top, is that the fact pattern does not conform to the traditional notions of an easement by necessity or an easement implied by prior use. Easements by necessity apply the word “necessity” rather strictly. The facts suggest that by the time of the litigation, access across parcel 1 was truly necessary – it was impossible to make it to the road in absence of the easement. However, this is just one element of an easement by necessity. An easement by necessity will arise only if the dominant parcels became landlocked as a result of the severance of the parcels. In this case, it is not entirely clear from the facts recited in the opinion, but it seems likely that parcels 2 through 10 had alternate access at the time of severance. An easement by necessity does not exist here for parcels 2 through 10.
Reporter’s Comment 3: A similar result arises with respect to an easement by pre existing use. The use – a roadway across parcel 1 for access – must have existed at the time parcel 1 was severed from parcels 2 through 10. The facts suggest that the roadway use across what was then national forest service property came about after severance.
Reporter’s Comment 4: This leaves the defendants hoping the court will create an easement through equity. The reporter is suspicious of any such order, and in any event, the creation of an easement in equity should be a very rare event. Note how this right comes into being: the court refuses to follow the law of trespass and eject the trespasser, leaving the trespasser with a judicially created interest. Some courts recognize an “easement by estoppel,” and perhaps this is what the court means to create here. The prototypical situation is that of an oral easement or license. This oral easement would be unenforceable under the statute of frauds, and does not satisfy the requirements of the two implied easements discussed above. However, if the owner of the alleged easement acts in reliance on the easement – perhaps builds a road, then the court may enforce the easement. A few courts will actually take what amounts mere permission (a license) and convert that into an easement
if the “easement holder” invests money into the easement and time passes without incident, during which the easement holder uses the access right. Again, if it would work an injustice or serious hardship, these courts would grant the “easement” right. Finally, if the owner of land defrauds his neighbour into believing that an easement exists, then if the normal elements of fraud are met (inducement, reasonable reliance, damages, untrue statements, etc.) a court might in equity create the easement.
Reporter’s Comment 5: The reporter suspects that it is the behaviour of the owner of parcel 1 that puts things over the edge for the court and causes it to find an equitable easement. The owner of parcel 1 purchased the property allegedly with knowledge that his neighbours used parcel 1 for access “and made a concerted effort to deprive the Butterfields of the value and use of their properties.”
Reporter’s Comment 6: The court’s affirmance of the trial court’s failure to award any damages at all strains this reporter’s credulity. The court of appeals sanctioned a continuing trespass and then stated, essentially, that this does not represent a loss to owner of parcel 1. True, the court couched this holding in the failure of plaintiff to prove the loss, and the reporter is in no position really to assess what was and what was not presented in evidence at trial. But how is it possible that the easement exists without any impact on the value of parcel 1.
Reporter’s Comment 7: But the reporter wonders what the neighbours thought they were doing when they continually crossed parcel 1? One of the owners said he “thought” he had easement rights. What does this mean? If the neighbour thought he had an easement right, he should have ascertained whether this was so. True, the owners of parcels 2 through 10 were in the habit of crossing the property for a very long time, but they had many years to work things out with the forest service. Maybe the reporter is simply lacking in compassion.
Editor’s Comment: The editor has never seen a case like this. He hopes that it is one of a kind. Equity typically grants easements by estoppel on the basis of some conduct by the servient tenant. Nothing like that here. He wonders, also, if, at some future time, access does arise for the landlocked lots, the then existing servient tenant could seek and obtain an injunction.
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