Aug 01, 2017
An Easement Update:
New Twists on Old Roads
Aug 01, 2017
By Tim Nardell
Easement disputes are common fare for Marin County real estate lawyers. The laws governing easements are fairly well-trodden and well understood. But even these well-trodden paths can lead to surprising results.
A new case that came down this spring, Hinrichs v. Melton, 17 Cal. Daily Op. Serv. 4217; 2017 WL 1684203 (May 3, 2017), features some twists in the road that are of broader interest than the narrow trails that were fought over in the case. Breaking new ground, the Court of Appeal upheld a trial court decision to exercise its equitable powers to grant a landlocked landowner an equitable easement to use a neighbor’s land for access even where there was absolutely no history of preexisting use of the land. The case raises troubling questions of how it can ever be equitable (or even constitutional) for a court to grant land rights to one neighbor that never existed before by taking away land rights from another neighbor without any compensation.
A Short Summary of Easement Law
An easement is an incorporeal interest in the land of another that entitles its owner to use or enjoy another's land, or to prevent another property owner from unfettered use of his or her land. Most easements are created by express grant in a written instrument. Such express easements are governed by the same rules that generally govern deeds, and, with a few exceptions, the same rules that govern the interpretation of written contracts. The goal of a court reviewing a written easement is to determine the intent of the parties at the time that the easement was created. Where the language of the easement is clear, parol evidence is inadmissible. However, where the language of the easement can be reasonably susceptible to multiple interpretations, parol evidence can be considered to determine the intent of the parties.
Easements can also be created without any writing and, under certain circumstances, without any agreement between the property owners. At least three forms of unwritten easements have been recognized by California courts: prescriptive easements, easements by necessity, and equitable easements.
A prescriptive easement is a form of adverse possession that can be established when a person openly takes continuous possession of the land of another under circumstances that would give the other owner notice of the occupation for a period of five years or longer. An easement by necessity can be established to allow road access to a landlocked owner over a neighboring parcel where the two parcels were once commonly owned, the prior common owner never expressed an intent not to allow an access road, and the court finds that an access road is strictly necessary. An equitable easement can be established wherever a court determines that the balance of hardships disproportionately favors the creation of an easement, such that the court determines that the most equitable result is to allow a person to use the land of another without being subject to ejectment (the normally applicable equitable remedy) or damages for trespass (the normal legal remedy).
Dirt Roads, Necessity, and Strange Concepts of Equity
The recently decided Hinrichs v. Melton case involved competing claims of unwritten easements between neighboring landowners in rural Ventura County. One landowner (Hinrichs) owned a landlocked property at the top of an isolated ridge. He sued three neighbors—Asquith, the Meltons, and Valiulis—for access easements to the landlocked parcel under various theories. Two lawsuits, one trial, and three appeals later, everyone except one of the neighbors (Valiulis) was left unhappy and no doubt considerably poorer. In the name of equity, the trial court granted Hinrichs an equitable easement that he had not sought across areas of the neighbors’ properties where there had never been any easements before, without providing for any compensation; the court of appeal’s published decision affirmed this result.
Historically, the owners of the Hinrichs property had accessed their property by an “unpaved path” that ran up to their ridge through an adjacent parcel that the Hinrichs previously owned and sold to Asquith. Hinrichs’ primary litigation strategy was to regain access to this path under a theory of easement by necessity. However, the easement by necessity would have had to extend through lands that were never under common ownership because, after passing through Asquith’s property, the path also ran through the Meltons’ property, and then through Valiulis’ property on the way to the nearest public road. The evidence at trial showed that the last time that Hinrichs had successfully driven a motor vehicle this route all the way from the public road to his land was in 1994. In 2002, Hinrichs had tried to drive up the route but only made the first 50 feet because the trail was too overgrown to get through. Valiulis purchased the downhill land adjoining the nearest road in 2003, and noticed the trail. Valiulis testified that there were already boulders blocking the path. In 2004, he placed more boulders and a barbed wire fence at the entrance to the path to prevent everyone and anyone (and especially Hinrichs) from using it. Hinrichs sued Valiulis in 2006 but dropped the case. He added Asquith and the Meltons as defendants the second time around, and sought a secondary route to his land from a different private road that touched a corner of his property.
Applying the principles of adverse possession outlined above, the trial court determined that the five plus years in which Valiulis had blocked the path had terminated any future rights to use the path to access the Hinrichs property. Having made this determination, the court deemed that it was obligated to find a way to allow Hinrichs access to his land. The court was left to choose between finding an easement by necessity or a new equitable easement to give Hinrichs access to his property. The trial judge visited the properties and decided that the best solution was to create a completely new road leading from a parking lot on Asquith’s property, through a “small part” of the Meltons’ property, to Hinrichs’ property. All three of these landowners appealed.
Trial Court Decision Affirmed
The Court of Appeal upheld the trial court’s decision. The Meltons’ appeal has the most general interest. They asserted that it could not be proper for the trial court to grant an equitable easement over their land via a route that no one had ever used before, and it was improper for the trial court to grant an equitable easement without any compensation. The Court of Appeal rejected these arguments, finding that a preexisting use is not an element for an equitable easement, that there is no requirement that the court offer compensation in granting an equitable easement, and that the trial court properly exercised its discretion to choose the “route that was least disruptive” to all the landowners involved.
The Court of Appeal soundly rejected the Meltons’ claim that a court order that took away property rights without compensation was a taking in violation of the Fifth Amendment of the Constitution. The court held that Fifth Amendment analysis applies only to legislative and quasi-legislative acts, and further noted that “the Meltons did not contend that the trial prevented them from seeking compensation.” This seems a strange interpretation of the role of a court of equity. It is understandable that the Court of Appeal would give the trial court broad deference to make its own decisions from its close-to-the-ground review of the equities. But how would a landowner defending itself in a lawsuit be expected to seek compensation? And how can it be equitable to grant a right over land without evidence of any prior historic use without any compensation, just because the landowners defending themselves did not ask to be paid?
The result is all the more strange because the Court of Appeal decision indicates that the access route that the trial court decided was the most equitable was not the route that the plaintiff wanted, and actually challenged on appeal. Hinrichs wanted to regain access to the route along the historic unpaved trail. There, the trial court determined that Valiulis’s self-help measures to block the route with boulders and a barbed wire fence had extinguished any easement rights. The Court of Appeal found that there was no basis to overturn the trial court’s determination that Valiulis’s actions constituted adverse possession of the easement. Once the trial court made this finding, and found its own different way to give access to Hinrichs' land, there was no need for the trial court to find an easement by necessity or an equitable easement across Valiulis’s land.
I see several interesting takeaways from this decision. First, easement cases, like most real estate cases, are driven by the facts. An appellate court is extremely reluctant to second guess the judgment of the trial court, especially when the record shows that the trial court’s decision was grounded on its evaluation of the site, with the opportunity to walk the ground. Second, the law favors active use of the land. It favors those who take intentional measures, including self-help measures, to protect their property rights. It disfavors those who rarely use their land, as in this case, for example, allowing historic access roads to fall into disrepair. Third, the law hates landlocked, unusable land. Fourth and finally, equity is in the eye of the beholder, sometimes creating new roads out of thin air.
Tim Nardell is a partner with Nardell, Chitsaz & Associates LLP in San Rafael. He has a broad civil litigation and business practice, including extensive experience in commercial and business disputes, real estate matters, defending and prosecuting claims involving unfair business practices, and class action cases. He serves on the MCBA Board of Directors.