Case Brief Case Study

IRAC the 2 cases, the cases to read are in the file below. double space, 2-3 page.

Felgenhauer v. Soni 17 Cal.Rptr.3d 135 (Cal. App. 2004). Pg 7

choose any two of the “Notes and Questions” problems following the case to answer

Richardson v. Franc 182 Cal.Rptr.3d 853 (Cal. App. 2015). Pg 11

Choose any two of the “Notes and Questions” problems following the case to answer

Chapter 6: Easements
1
Chapter 6: Easements
A.
What Is An Easement?
Easements are interests in land. Unlike fee simple ownership, they are nonpossessory. Rather,
they allow the easement holder to use or control someone else’s land. Suppose Anna owns
Blackacre, and Brad owns Whiteacre, which borders Blackacre. Anna would like to cross
Whiteacre to reach Blackacre. She could ask Brad for permission to cross, but even if he says
yes, permission can be revoked. Brad might also convey Whiteacre to a less welcoming owner.
Anna may therefore wish to acquire a property interest that gives her an irrevocable right to
cross over Whiteacre. If Brad conveys her this interest (by sale or grant), Anna now owns an
easement of access, which is a right to enter and cross through someone’s land on the way
to someplace else.
Terminology. Easements come in multiple flavors. The first distinction is between
affirmative and negative easements. An affirmative easement lets the owner do something
on (or affecting) the land of another, known as the servient estate (or servient tenement).
The right is the benefit of the easement, and the obligation on the servient estate is its burden.
As noted above, a common affirmative easement is an easement of access (also known as
an easement of way), which requires the owner of the servient estate to allow the easement
holder to travel on the land to reach another location. In the example above, Anna has an
affirmative easement to cross Whiteacre, the servient estate, to access Blackacre. 1 A negative
easement prohibits the owner of the servient estate from engaging in some action on the
land. For example, if Anna has a solar panel on her property, she might acquire a solar
easement from Brad that would prohibit the construction of any structures on Whiteacre that
might block the sun from Anna’s panel on Blackacre.
Another distinction is between easements appurtenant and easements in gross. An
easement appurtenant benefits another piece of land, the dominant estate. The owner of the
dominant estate exercises the rights of the easement. If ownership of the dominant estate
changes, the new owner exercises the powers of the easement; the prior owner retains no
If the easement holder is allowed to take something from the land (suppose Anna has the right to harvest wheat from
Whiteacre while in transit to Blackacre), the right is called a profit a prendre or profit. Profits were traditionally classified
as distinct from easements, though their legal treatment is typically similar. See, e.g., Figliuzzi v. Carcajou Shooting Club of
Lake Koshkonong, 516 N.W.2d 410, 414 (Wis. 1994) (“[W]e can find no distinction between easements and profits
relevant to recording the property interest[.]”). The Restatement characterizes the profit as a kind of easement. § 1.2.
1
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interest. So if Anna’s easement to cross Whiteacre to reach Blackacre is an easement
appurtenant, Blackacre is the dominant estate. If she conveys Blackacre to Charlie, Charlie
becomes the owner of the easement.
In an easement in gross, the easement benefits a specific person, who exercises the rights of
the easement rights regardless of land ownership. If Anna’s easement to cross Whiteacre to
reach Blackacre is an easement in gross, she keeps her easement even if she conveys Blackacre.
In general, the presumption is in favor of an easement appurtenant over an easement in gross.
Why do you think that is?
Easements are part of the larger law of servitudes, which include real covenants and equitable
servitudes. A servitude is a legal device that creates a right or obligation that runs with the
land. A right runs with the land when it is enjoyed not only by its initial owner but also by all
successors to that owner’s benefited property interest. A burden runs with the land when it
binds not only its initial obligor but also all successors to that obligor’s burdened property
interest. A servitude can be, among other things, an easement, profit, or covenant. These
interests overlap, and the Restatement (Third) of Property (Servitudes) (2000) seeks to unify
them. 2 As a matter of history, however, easement law developed as a distinct set of doctrines,
and this chapter gives them separate treatment. 3 We will discuss equitable servitudes in our
chapter on Restrictive Covenants.
B.
Creating Easements
1.
Express easements
Because easements are interests in land, express easements are subject to the Statute of Frauds.
Failures to comply with the statute may still be enforced in cases of reasonable detrimental
reliance. See, e.g., RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 2.9.
A covenant is a servitude if either its benefit or its burden runs with the land; otherwise it is merely a contract enforceable
only as between the original contracting parties (or perhaps a gratuitous promise enforceable by nobody at all). When a
covenant is a servitude, it may equivalently be described as either a “servitude” or “a covenant running with the land.” We
will discuss covenants in a later chapter.
3 Moreover, the Third Restatement is somewhat notorious for the extent to which it seeks not only to “restate” the
common law, but to push it in a particular direction. While the Third Restatement does tend to provide the modern
approach to most servitudes issues, it has a tendency to advocate against traditional, formalist rules that are often still good
law in many American jurisdictions. We will not thoroughly explore these distinctions here; you should however be aware
of the importance of thoroughly investigating the applicable law in your jurisdiction if you ever encounter servitudes in
practice.
2
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***
2.
Implied Easements
Easements may come into being without explicit agreements. They may arise from equitable
enforcement of implied agreements or references to maps or boundary references in
conveyances. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 2.13. In this section, we
focus on two forms of implied easements: An easement implied by existing use and an
easement by necessity. Both such easements commonly arise as a byproduct of land
transactions.
a. Easement implied by existing use
An easement implied by existing use may arise when a parcel of land is divided and amenities
once enjoyed by the whole parcel are now split up, such that in order to enjoy the amenity (a
utility line, or a driveway, for example), one of the divided lots requires access to the other.
Imagine, for example, a home connected to a city sewer line via a privately owned drainpipe,
on a parcel that is later divided by carving out a portion of the lot between the original house
and the sewer line connection:
In such a situation, courts will frequently find an easement implied by prior existing use,
allowing the owner of the house to continue using the drainpipe even though it is now under
someone else’s land. See, e.g., Van Sandt v. Royster, 83 P.2d 698 (Kan. 1938). There are,
however, some limits to the circumstances that will justify the implication of such an easement:
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[T]he easement implied from a preexisting use, [is] also characterized as a quasieasement. Such an easement arises where, during the unity of title, an apparently
permanent and obvious servitude is imposed on one part of an estate in favor of
another part. The servitude must be in use at the time of severance and necessary for
the reasonable enjoyment of the severed part. A grant of a right to continue such use
arises by implication of law. An implied easement from a preexisting use is established
by proof of three elements: (1) common ownership of the claimed dominant and
servient parcels and a subsequent conveyance or transfer separating that ownership; (2)
before severance, the common owner used part of the united parcel for the benefit of
another part, and this use was apparent and obvious, continuous, and permanent; and
(3) the claimed easement is necessary and beneficial to the enjoyment of the parcel
conveyed or retained by the grantor or transferrer.
Dudley v. Neteler, 924 N.E.2d 1023, 1027-28 (Ill. App. 2009) (internal citations and quotations
omitted). The following notes consider each of these elements.
Notes and Questions
1. Common Ownership. Are easements implied by prior existing use fair to owners of
subdivided land? Why shouldn’t we require purchasers of subdivided lots to “get it in
writing”—that is, to bargain for easements to obvious and necessary amenities when
accepting a parcel carved out from a larger plot of land? For that matter, why don’t we
require the original owner to bargain for the right to continue to use land that they are
purporting to sell? Who do we think is in a better position to identify the need for such
an easement, the prior owner of the undivided parcel, or the purchaser of the carvedout portion of that parcel? Should the answer matter in determining whether to imply
an easement or not?
***
2. Reasonable necessity. Reasonable necessity is something less than absolute necessity.
See, e.g., Rinderer v. Keeven, 412 N.E.2d 1015, 1026 (Ill. App. 1980) (“It is well
established that one who claims an easement by implication need not show absolute
necessity in order to prevail; it is sufficient that such an easement be reasonable, highly
convenient and beneficial to the dominant estate.” (internal quotation and citation
omitted)). Does this leave courts with too much discretion to impose easements? A
minority of jurisdictions make a formal distinction between implied easements in favor
of grantees and grantors, requiring strict necessity in the case of the latter.
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RESTATEMENT § 2.12. But see Tortoise Island Communities, Inc. v. Moorings Ass’n,
Inc., 489 So. 2d 22, 22 (Fla. 1986) (concluding that an absolute necessity is required in
all cases).
***
b. Easements by necessity
An easement by necessity (or sometimes way by necessity) arises when land becomes
landlocked or incapable of reasonable use absent an easement. For example, if A owns a
rectangular parcel bordered on the north, east, and west by privately owned land and on the
south by a public street, and conveys to B a strip of her land on the northern boundary, B will
acquire an easement by necessity across the southern portion of the parcel retained by A:
There are two traditional rationales for easements by necessity. The first considers it an implied
term of a conveyance, assuming that the parties would not intend for land to be conveyed
without a means for access. The second simply treats the issue as one of public policy favoring
land use.
***
Easements by necessity are typically about access, but other kinds of uses may be necessary to
the reasonable enjoyment of property. For example, suppose O conveys mineral rights to
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Blackacre to A. A would have both an easement of access to Blackacre and the right to engage
in the mining necessary to reach the minerals. Likewise, an express easement of way may
require rights to maintain and improve the easement. Access for utilities may also give rise to
an easement by necessity, creating litigation over which utilities are “necessary”:
When questioned by defendants as to why he could not use a cellular
phone on his property, plaintiff testified he ran a home business and a
cellular phone was not adequate to handle his business needs; for
example, a computer cannot access the Internet over a cellular phone.
Plaintiff also testified solar power and gas generators were unable to
produce enough electricity to make his home habitable.
Smith v. Heissinger, 745 N.E.2d 666, 672 (Ill. App. 2001) (affirming finding of necessity of
easement for underground utilities).
Courts often describe the degree of necessity required to find an easement by necessity as
being “strict.” See, e.g., Ashby v. Maechling, 229 P.3d 1210, 1214 (Mont. 2010) “Two essential
elements of an easement by necessity are unity of ownership and strict necessity.”). It is
certainly higher than that needed for an easement implied by existing use. That said,
considerable precedent indicates that the necessity need not be absolute. See, e.g., Cale v.
Wanamaker, 121 N.J. Super. 142, 148, 296 A.2d 329, 333 (Ch. Div. 1972) (“Although some
courts have held that access to a piece of property by navigable waters negates the ‘necessity’
required for a way of necessity, the trend since the 1920’s has been toward a more liberal
attitude in allowing easements despite access by water, reflecting a recognition that most
people today think in terms of ‘driving’ rather than ‘rowing’ to work or home.”).
***
3.
Prescriptive Easements
Easements may also arise from prescription. An easement by prescription is acquired in a
manner similar to adverse possession, as it is a non-permissive use that ultimately ripens into
a property interest. Recall the five elements of adverse possession: Entry and possession that
is (1) actual, (2) exclusive, (3) hostile or under claim of right, (4) open and notorious, and (5)
continuous for the statutory limitations period. Which (if any) of these elements might have
to be modified where the right being acquired is not a right of possession, but a right of use?
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Felgenhauer v. Soni
17 Cal.Rptr.3d 135 (Cal. App. 2004).
GILBERT, P.J.
Here we hold that to establish a claim of right to a prescriptive easement, the claimant need
not believe he or she is legally entitled to use of the easement. Jerry and Kim Felgenhauer
brought this action to quiet title to prescriptive easements over neighboring property owned
by Ken and Jennifer Soni. A jury made special findings that established a prescriptive easement
for deliveries. We affirm.
FACTS
In November of 1971, the Felgenhauers purchased a parcel of property consisting of the front
portion of two contiguous lots on Spring Street in Paso Robles, [California]. The parcel is
improved with a restaurant that faces Spring Street. The back portion of the lots is a parking
lot that was owned by a bank. The parking lot is between a public alley and the back of the
Felgenhauers’ restaurant.
From the time the Felgenhauers opened their restaurant in 1974, deliveries were made through
the alley by crossing over the parking lot to the restaurant’s back door. The Felgenhauers never
asked permission of the bank to have deliveries made over its parking lot. The Felgenhauers
operated the restaurant until the spring of 1978. Thereafter, until 1982, the Felgenhauers leased
their property to various businesses.
The Felgenhauers reopened their restaurant in June of 1982. Deliveries resumed over the
bank’s parking lot to the restaurant’s back door. In November of 1984, the Felgenhauers sold
their restaurant business, but not the real property, to James and Ann Enloe. The Enloes
leased the property from the Felgenhauers. Deliveries continued over the bank’s parking lot.
James Enloe testified he did not believe he had the right to use the bank’s property and never
claimed the right. Enloe said that during his tenancy, he saw the bank manager in the parking
lot. The manager told him the bank planned to construct a fence to define the boundary
between the bank’s property and the Felgenhauers’ property. Enloe asked the manager to put
in a gate so that he could continue to receive deliveries and have access to a trash dumpster.
The manager agreed. Enloe “guess[ed]” the fence and gate were constructed about three years
into his term. He said, “[Three years] could be right, but it’s a guess.” In argument to the jury,
the Sonis’ counsel said the fence and gate were constructed in January of 1988.
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The Enloes sold the restaurant to Brett Butterfield in 1993. Butterfield sold it to William
DaCossee in March of 1998. DaCossee was still operating the restaurant at the time of trial.
During all this time, deliveries continued across the bank’s parking lot.
The Sonis purchased the bank property, including the parking lot in dispute in 1998. In 1999,
the Sonis told the Felgenhauers’ tenant, DaCossee, that they were planning to cut off access
to the restaurant from their parking lot.
The jury found the prescriptive period was from June of 1982 to January of 1988.
DISCUSSION
I
The Sonis contend there is no substantial evidence to support a prescriptive easement for
deliveries across their property. They claim the uncontroverted evidence is that the use of their
property was not under “a claim of right.”…
At common law, a prescriptive easement was based on the fiction that a person who openly
and continuously used the land of another without the owner’s consent, had a lost grant.
California courts have rejected the fiction of the lost grant. Instead, the courts have adopted
language from adverse possession in stating the elements of a prescriptive easement. The two
are like twins, but not identical. Those elements are open and notorious use that is hostile and
adverse, continuous and uninterrupted for the five-year statutory period under a claim of right.
Unfortunately, the language used to state the elements of a prescriptive easement or adverse
possession invites misinterpretation. This is a case in point.
The Sonis argue the uncontroverted evidence is that the use of their property was not under
a claim of right. They rely on the testimony of James Enloe that he never claimed he had a
right to use the bank property for any purpose.
Claim of right does not require a belief or claim that the use is legally justified. It simply means
that the property was used without permission of the owner of the land. As the American Law
of Property states in the context of adverse possession: “In most of the cases asserting [the
requirement of a claim of right], it means no more than that possession must be hostile, which
in turn means only that the owner has not expressly consented to it by lease or license or has
not been led into acquiescing in it by the denial of adverse claim on the part of the possessor.”
(3 Casner, American Law of Property (1952) Title by Adverse Possession, § 5.4, p. 776.)…
Enloe testified that he had no discussion with the bank about deliveries being made over its
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property. The jury could reasonably conclude the Enloes used the bank’s property without its
permission. Thus they used it under a claim of right.
The Sonis attempt to make much of the fence the bank constructed between the properties
and Enloe’s request to put in a gate. But Enloe was uncertain when the fence and gate were
constructed. The Sonis’ attorney argued it was constructed in January of 1988. The jury could
reasonably conclude that by then the prescriptive easement had been established.
The Sonis argue the gate shows the use of their property was not hostile. They cite Myran v.
Smith (1931) 117 Cal.App. 355, 362, 4 P.2d 219, for the proposition that to effect a prescriptive
easement the adverse user “… must 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.”
But Myran made the statement in the context of what is necessary to create a prescriptive
easement. Here, as we have said, the jury could reasonably conclude the prescriptive easement
was established prior to the erection of the fence and gate. The Sonis cite no authority for the
proposition that even after the easement is created, the user must keep the flag of hostility
flying. To the contrary, once the easement is created, the use continues as a matter of legal
right, and it is irrelevant whether the owner of the servient estate purports to grant permission
for its continuance.…
Notes
1. Fiction of the lost grant. Felgenhauer refers to the fiction of the lost grant. The
principle traces back to English law. 4-34 POWELL ON REAL PROPERTY § 34.10 (“In
early England the enjoyment had to have been ‘from time immemorial,’ and this date
came to be fixed by statute as the year 1189. Towards the close of the medieval period,
this theory was rephrased and an easement of this type was said to arise from a grant,
presumably made in favor of the claimant before the time of legal memory, but since
lost.”). The usual American approach is to ignore the fiction and simply apply rules of
prescription that largely track those of adverse possession. See id.
2. How do the elements of a prescriptive easement differ from the elements of adverse
possession? Why do you think they differ in this way? How do the resulting interests
differ?
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3. Easements acquired by the public. What happens if city pedestrians routinely cut
across a private parking lot? May an easement by prescription be claimed by the public
at large? Does it matter that the right asserted is not in the hands of any one person?
Here, too, the fiction of the lost grant may play a role in the willingness of courts to
entertain the possibility.
There is a split of authority as to whether a public highway may be created by
prescription. *** The majority view now is that a public easement may be
acquired by prescription. [***]2 J. Grimes, Thompson on Real Property § 342,
at 209 (1980).
Dillingham Commercial Co. v. City of Dillingham, 705 P.2d 410, 416 (Alaska 1985).
What then should the owner of a publicly accessible location do? The owners of
Rockefeller Center reportedly block off its streets one day per year in order to prevent
the loss of any rights to exclude. David W. Dunlap, “Closing for a Spell, Just to Prove
It’s
Ours,”
New
York
Times
(Oct.
28,
2011),
available
at
http://www.nytimes.com/2011/10/30/nyregion/lever-house-closes-once-a-year-tomaintain-its-ownership-rights.html?_r=0 (“But there is another significant hybrid:
purely private space to which the public is customarily welcome, at the owners’ implicit
discretion. These spaces include Lever House, Rockefeller Plaza and College Walk at
Columbia University, which close for part of one day every year.”). Another option is
to post a sign granting permission to enter (thus negating any element of adversity).
Some states approve this approach by statute. Cal. Civ. Code § 1008 (“No use by any
person or persons, no matter how long continued, of any land, shall ever ripen into an
easement by prescription, if the owner of such property posts at each entrance to the
property or at intervals of not more than 200 feet along the boundary a sign reading
substantially as follows: ‘Right to pass by permission, and subject to control, of owner:
Section 1008, Civil Code.’”).
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Image by Bryan Costales, used under a Creative Commons Attribution 4.0 International license.
4.
Irrevocable Licenses
An easement is distinct from a license. A license is permission from the owner to enter the
land. Because it is permissive, it is revocable. Many difficulties with distinguishing easements
from licenses arise when parties fail to clearly bargain over the right to use land. See, e.g., Willow
Tex, Inc. v. Dimacopoulos, 503 N.E.2d 99, 100 (N.Y. 1986) (“The writing must establish
unequivocally the grantor’s intent to give for all time to come a use of the servient estate to
the dominant estate. The policy of the law favoring unrestricted use of realty requires that
where there is any ambiguity as to the permanence of the restriction to be imposed on the
servient estate, the right of use should be deemed a license, revocable at will by the grantor,
rather than an easement.”).
Under the right circumstances, a license may become irrevocable.
Richardson v. Franc
182 Cal.Rptr.3d 853 (Cal. App. 2015)
RUVOLO, P.J.
In order to access their home in Novato, California, James Scott Richardson and Lisa Donetti
(respondents) had to traverse land belonging to their neighbors, Greg and Terrie Franc
(appellants) on a 150–foot long road which was authorized by an easement for “access and
public utility purposes.” Over a 20–year period, both respondents and their predecessors-ininterest maintained landscaping, irrigation, and lighting appurtenant to both sides of the road
within the easement area without any objection. Six years after purchasing the property
burdened by the easement, appellants demanded that respondents remove the landscaping,
irrigation, and lighting on the ground that respondents’ rights in the easement area were
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expressly limited to access and utility purposes, and the landscaping and other improvements
exceeded the purpose for which the easement was granted. Respondents brought this lawsuit
seeking, among other things, to establish their right to an irrevocable license which would
grant them an uninterrupted right to continue to maintain the landscaping and other
improvements.…
…. In 1989, Karen and Tom Poksay began building their home on undeveloped property at
2513 Laguna Vista Drive in Novato, California. The project included constructing and
landscaping a 150–foot long driveway within the 30–foot wide easement running down to the
site of their new home, which was hidden from the street. The driveway was constructed
pursuant to an easement over 2515 Laguna Vista Drive, which was then owned by [appellants’
predecessors in interest]. The easement was for access and utility purposes only.
Landscaping along the driveway was important to the Poksays.… They hired a landscaper,
who dug holes for plants and trees. Ms. Poksay then added plants and trees along both sides
of the driveway in the easement area—hawthorn trees, Australian tea trees, daylilies, Mexican
sage, breath of heaven, flowering pear trees, and evergreen shrubs.
The landscaper installed a drip irrigation system.… Water fixtures were also installed along the
driveway for fire safety. The Poksays also added electrical lighting along the driveway, later
replacing the electrical lighting with solar lighting.
During the decade that the Poksays resided at the property Ms. Poksay regularly tended to the
landscaped area, including trimming and weeding, ensuring the irrigation system was working
properly, and replacing plants and trees as necessary. In addition to Ms. Poskay’s own labor,
the Poksays paid their landscaper to perform general maintenance ….
Respondents purchased the property in late 2000.… Over the years, respondents added new
plants and trees, including oleanders, an evergreen tree, another tea tree, Mexican sage,
lavender, rosemary, and a potato bush. Respondent Donetti testified that landscapers came
weekly or every other week, and the landscapers spent 40 to 50 percent of their time in the
easement area.… During her testimony, respondent Donetti explained, “we’ve paid a lot of
money to nurture it and grow it. It’s beautiful. It has privacy. It’s absolutely tied to our house
value. It’s our curb appeal.”
Appellants purchased 2515 Laguna Vista Drive in 2004. [Appellant Greg Franc admitted he
knew about the landscaping in the easement area, as well as the hiring of landscapers.] He even
admitted that the trees were “beautiful and provide a lot of color and [were] just all-around
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attractive.” From 2004 to August 2010, appellants and respondents lived in relative harmony
…. It was not until late 2010—approximately six years after appellants bought the property
and two decades after the landscaping and other improvements began—that appellants first
raised a concern about the landscaping and other improvements. Prior to that date, no one
had ever objected.
In late September or early October 2010, without any notice, appellant Greg Franc cut the
irrigation and electrical lines on both sides of the driveway. He cut not only the lines irrigating
the landscaping on the easement, but also those irrigating respondents’ own property. The
water valve pumps leading to the irrigation lines were disassembled as well. As part of these
proceedings, the trial court granted respondents’ motion for preliminary injunction and the
irrigation system was restored.… Following a bench trial and an on-site visit to the property,
the court .… granted respondents’ request for an irrevocable license . …
.… [A]s appellants acknowledge, the grant of an irrevocable license is “based in equity.” After
the trial court has exercised its equitable powers, the appellate court reviews the judgment
under the abuse of discretion standard.…
Before we address the specific issues appellants raise on appeal, it is helpful to review the law
governing the grant of an irrevocable license. “A license gives authority to a licensee to
perform an act or acts on the property of another pursuant to the express or implied
permission of the owner.” (6 Miller & Starr, Cal. Real Estate (3d ed. 2000) Easements, § 15:2,
p. 15–10.) “A licensor generally can revoke a license at any time without excuse or without
consideration to the licensee. In addition, a conveyance of the property burdened with a license
revokes the license….” (Id. at pp 15–10–15–11, fns. omitted.)
However, a license may become irrevocable when a landowner knowingly permits another to
repeatedly perform acts on his or her land, and the licensee, in reasonable reliance on the
continuation of the license, has expended time and a substantial amount of money on
improvements with the licensor’s knowledge. Under such circumstances, it would be
inequitable to terminate the license. In that case, the licensor is said to be estopped from
revoking the license, and the license becomes the equivalent of an easement, commensurate
in its extent and duration with the right to be enjoyed. A trial court’s factual finding that a
license is irrevocable is reviewed for substantial evidence.
In the paradigmatic case, a landowner allows his neighbor the right to use some portion of his
property—often a right of way or water from a creek—knowing that the neighbor needs the
right to develop his property. The neighbor then builds a house, digs an irrigation ditch, paves
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the right of way, plants an orchard, or farms the land in reliance on the landowner’s
acquiescence. Later, after failing to make a timely objection, the landowner or his successor
suddenly raises legal objections and seeks to revoke the neighbor’s permissive usage.…
In the instant case …. the statement of decision states: “Because [respondents] adduced
sufficient evidence at trial concerning their substantial expenditures in the easement area for
landscaping, maintenance, care, and physical labor, and because sufficient evidence was
presented at trial to support that [respondents’] predecessor-in-interest, Ms. Poksay, also
expended substantial sums in the easement area for landscaping, maintenance, care, and
physical labor, and because, as the evidence and testimony at trial showed, that no objection
was made to any of this by either [appellants] or [appellants’] predecessor-in-interest, Mr.
Schaefer, over the course of more than 20 years, [respondents] have sufficiently met the
requirements for an irrevocable parol license for both [respondents], and [respondents’]
successors-in-interest. Both law and equity dictate this result.”
.…[Appellants] contend the trial court erred in finding the evidence supported the creation of
an irrevocable license because respondents’ reliance on continued permission to landscape and
make other improvements in the easement area was not reasonable as a matter of law.
Appellants point out the evidence at trial revealed that throughout the history of the ownership
of the property, there was never an actual request for permission to make and maintain these
improvements and express consent was never given. In essence, appellants contend that tacit
permission by silence is insufficient to create an irrevocable license and that respondents were
required to show an express grant of permission induced them into undertaking the
improvements within the easement area.
Permission sufficient to establish a license can be express or implied.… A license may also
arise by implication from the acts of the parties, from their relations, or from custom. When
a landowner knowingly permits another to perform acts on his land, a license may be implied
from his failure to object.…
.… Here, the undisputed evidence revealed appellants failed to object to the landscaping and
other improvements for 6 years before appellants first made their demand that the landscaping
and other improvements be removed. Thus, with full knowledge that the road providing
ingress and egress to respondents’ property was landscaped, irrigated, and lit, and with full
knowledge that respondents were maintaining these improvements on an ongoing basis,
appellants said nothing to respondents. When coupled with the previous 14 years appellants’
predecessors-in-interest acquiesced in these improvements, this constituted a total of 20 years
of uninterrupted permissive use of the easement area for the landscaping and other
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improvements. Therefore, we find the court had ample evidence to conclude that adequate
and sufficient permission was granted to respondents by appellants to maintain the extensive
landscaping improvements on either side of the roadway.
Appellants next stress that for the license to be irrevocable, there must be substantial
expenditures in reliance on the license. In this regard, the trial court made the necessary
findings that respondents “have expended substantial monetary sums to improve, maintain,
landscape, and care for the easement area, including the retention of professional landscapers
on a regular basis….”
Appellants next challenge “the unlimited physical scope and duration of the license” granted
by the trial court. They claim “the trial court, in derogation of equity and the law, decided that
[r]espondents … should have sole and absolute discretion to decide what will happen on
property that is owned by [appellants].” In making this argument, appellants ignore the fact
that the trial court was vested with broad discretion in framing an equitable result under the
facts of this case.… As it was empowered to do, the trial court exercised its broad equitable
discretion and fashioned relief to fit the specific facts of this case. The court found “by a
preponderance of the evidence that [respondents] hold an irrevocable parol license for
themselves and their successors-in-interest to maintain and improve landscaping, irrigation,
and lighting within the 30’ wide and 150’ long easement.”
Appellants assert “it is wholly erroneous and grossly unfair to make the license irrevocable in
perpetuity.” (Original italics.) Appellants argue that a proper ruling in this case would be to grant
respondents an irrevocable license but “with the license to landscape and garden limited in
duration until [respondents] transfer title to anyone else or no longer reside on the property….”
The principles relating to the duration of an irrevocable license were stated by our Supreme
Court over a century ago, and these principles are still valid today. An otherwise revocable
license becomes irrevocable when the licensee, acting in reasonable reliance either on the
licensor’s representations or on the terms of the license, makes substantial expenditures of
money or labor in the execution of the license; and the license will continue “for so long a
time as the nature of it calls for.” As explained in a leading treatise, “A license remains
irrevocable for a period sufficient to enable the licensee to capitalize on his or her investment.
He can continue to use it only as long as justice and equity require its use.” (6 Miller & Starr,
supra, § 15:2, p. 15–15.)
The evidence adduced at trial indicates respondents and their predecessors in interest
expended significant money and labor when they planted and nurtured the landscaping
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abutting the roadway, installed sophisticated irrigation equipment throughout the easement
area, and constructed lighting along the roadway. Under such circumstances the trial court did
not abuse its discretion in concluding it would be inequitable to require respondents to remove
these improvements when the property is transferred, given the substantial investment in time
and money and the permanent nature of these improvements.…
Lastly, we reject appellants’ hyperbolic claim that in fashioning the scope and duration of the
irrevocable license granted in this case, “the trial court, without exercising caution, took
property that rightfully belonged to [appellants] and ceded it to [r]espondents—and their
successors—forever.”
This argument ignores that a license does not create or convey any interest in the real property;
it merely makes lawful an act that otherwise would constitute a trespass.… Far from granting
respondents “an exclusive easement amounting to fee title” as appellants’ claim, the court’s
decision simply maintains the status quo that has existed for over 20 years and was obvious to
appellants when they purchased the property a decade ago.
Notes and Questions
1. The Restatement characterizes irrevocable license situations as a servitude created by
estoppel. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 2.10. Is there any
difference, then, between an irrevocable license and an easement by prescription? Is
there any reason to treat them differently?
2. Is landscaping important enough to justify the intrusion into property ownership
interests? What do you think would have happened had the appellants won?
3. How well does Richardson track your intuitions about everyday behavior? Would you
ask permission before engaging in the landscaping at issue here? Would you advise a
client to? Suppose you asked your neighbor for an easement of way to enable you to
build on an adjoining property? You’re friends, and he says yes. But you know a thing
or two about the law, so you know that if your relations turn sour you would have to
rely on an irrevocable license claim. Would you push for a formal grant in writing? Is
that a neighborly thing to do? For one view, see Shepard v. Purvine, 248 P.2d 352, 36162 (Or. 1952) (“Under the circumstances, for plaintiffs to have insisted upon a deed
would have been embarrassing; in effect, it would have been expressing a doubt as to
their friend’s integrity.”). Does it make a difference that you know to ask? What about
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those without legal training? Should the law accommodate private ordering or funnel
property holders into formal arrangements? Do the interests of third parties, including
possible future purchasers of each of the affected properties, matter to your analysis?
C.
Transferring Easements
Easements appurtenant. Transferring easements appurtenant is simple; when the dominant
estate is conveyed, the rights of the easement come along. This is a natural consequence of
the principle that servitudes (such as easements) run with the land. A more complicated
problem concerns the division of the dominant estate into smaller parcels. The default
approach is to allow each parcel to enjoy the benefit of the easement. ***
Easements in gross. The modern view is that easements in gross are transferable, assuming
no contrary intent in their creation (e.g., that the benefit was intended to be personal to the
recipient). RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 4.6 cmt. (2000) (“Although
historically courts have often stated that benefits in gross are not transferable, American courts
have long carved out an exception for profits and easements in gross that serve commercial
purposes. Under the rule stated in this section, the exception has now become the rule.”);
RESTATEMENT (FIRST) OF PROPERTY § 489 (1944) (commercial easements in gross, as distinct
from easements for personal satisfaction, are transferable); § 491 (noncommercial easements
in gross “determined by the manner or the terms of their creation”).
***
D.
Terminating Easements
Easements can be terminated in a variety of ways.
1. Unity of ownership. When the dominant and servient estates of an easement
appurtenant unite under one owner, the easement ends. Likewise an easement in gross
ends if the owner acquires an interest in the servient tenement that would have
provided independent authority to exercise the rights of the easement.
2. Release by the easement holder. The First Restatement would require a written
instrument under seal for an inter vivos release, while the modern Restatement simply
requires compliance with the Statute of Frauds.
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3. Abandonment. Abandonment resembles a release. ***Abandonment may be inferred
by actions [or agreement of the parties.] ***
4. Estoppel. Estoppel may terminate an easement when 1) the owner of the servient
tenement acts in a manner that is inconsistent with the easement’s continuation; 2) the
acts are in foreseeable reasonable reliance on conduct by the easement holder; and 3)
allowing the easement to continue would work an unreasonable harm to the owner of
the servient property. Id. § 505.
5. Prescription. Just as an easement may be gained by prescription, so too may it be lost
by open and notorious adverse acts by the owner of the servient tenement that
interrupt the exercise of the easement for the prescription period.
6. Condemnation. The exercise of the eminent domain power to take the servient estate
creates the possibility of compensation for the easement owner.
7. A tax deed. A tax deed is an instrument transferring title to property on which taxes
have gone unpaid following foreclosure of the resulting tax lien. Sometimes the
property transferred by tax deed will be encumbered by an easement. Section 509 of
the First Restatement provides that a tax deed will extinguish an easement in gross
encumbering the deeded property, but not an easement appurtenant encumbering the
deeded property.
8. Expiration, if the interest was for a particular time.
***
E.
Negative Easements/Conservation Easements
In the United States, most of the work that could have been done by negative easements is
largely performed by real covenants or equitable servitudes, which we take up in a future
reading. See RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 (“A ‘negative’
easement, the obligation not to use land in one’s possession in specified ways, has become
indistinguishable from a restrictive covenant, and is treated as such in this Restatement.”).
Nineteenth century English law gave negative easements a narrow domain. They were
available only to prevent the servient estate from restricting light, air, support, or the flow of
water of an artificial stream to the dominant estate. Id. § 1.2 cmt. h. Such easements were
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likewise not widely embraced in the United States, where equitably enforced negative
covenants held in gross were disfavored.
***
The limitations of negative easements complicated efforts to create conservation and
preservation easements. Such easements tend to be held in gross (e.g., by a conservation
organization), and the common law prohibited equitable enforcement of negative covenants
held in gross. The law likewise was skeptical about expanding the categories for which negative
easements were available. RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.6 cmt. a
(2000). The problem was addressed by the Uniform Conservation Easement Act, which has
now been adopted by every state. 4 POWELL ON REAL PROPERTY § 34A.01.
F.
Public Use Rights
Public prescriptive easements are not the only way to grant members of the public access
rights to land. The public trust doctrine addresses the public’s right to access certain natural
resources.
Matthews v. Bay Head Imp. Ass’n
471 A.2d 355 (N.J. 1984)
….In order to exercise these rights guaranteed by the public trust doctrine, the public must
have access to municipally-owned dry sand areas as well as the foreshore. The extension of
the public trust doctrine to include municipally-owned dry sand areas was necessitated by our
conclusion that enjoyment of rights in the foreshore is inseparable from use of dry sand
beaches.… We [previously] held that where a municipal beach is dedicated to public use, the
public trust doctrine “dictates that the beach and the ocean waters must be open to all on
equal terms and without preference and that any contrary state or municipal action is
impermissible.” 61 N.J. at 309, 294 A.2d 47.…
We now address the extent of the public’s interest in privately-owned dry sand beaches. This
interest may take one of two forms. First, the public may have a right to cross privately owned
dry sand beaches in order to gain access to the foreshore. Second, this interest may be of the
sort enjoyed by the public in municipal beaches … namely, the right to sunbathe and generally
enjoy recreational activities.
Beaches are a unique resource and are irreplaceable. The public demand for beaches has
increased with the growth of population and improvement of transportation facilities.…
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Exercise of the public’s right to swim and bathe below the mean high water mark may depend
upon a right to pass across the upland beach. Without some means of access the public right
to use the foreshore would be meaningless. To say that the public trust doctrine entitles the
public to swim in the ocean and to use the foreshore in connection therewith without assuring
the public of a feasible access route would seriously impinge on, if not effectively eliminate,
the rights of the public trust doctrine. This does not mean the public has an unrestricted right
to cross at will over any and all property bordering on the common property. The public
interest is satisfied so long as there is reasonable access to the sea.…
The bather’s right in the upland sands is not limited to passage. Reasonable enjoyment of the
foreshore and the sea cannot be realized unless some enjoyment of the dry sand area is also
allowed. The complete pleasure of swimming must be accompanied by intermittent periods
of rest and relaxation beyond the water’s edge. The unavailability of the physical situs for such
rest and relaxation would seriously curtail and in many situations eliminate the right to the
recreational use of the ocean. This was a principal reason why in [earlier cases] we held that
municipally-owned dry sand beaches “must be open to all on equal terms ….” We see no reason
why rights under the public trust doctrine to use of the upland dry sand area should be limited
to municipally-owned property. It is true that the private owner’s interest in the upland dry
sand area is not identical to that of a municipality. Nonetheless, where use of dry sand is
essential or reasonably necessary for enjoyment of the ocean, the doctrine warrants the public’s
use of the upland dry sand area subject to an accommodation of the interests of the owner.
We perceive no need to attempt to apply notions of prescription, City of Daytona Beach v. TonaRama, Inc., 294 So.2d 73 (Fla.1974), dedication, Gion v. City of Santa Cruz, 2 Cal.3d 29, 465 P.2d
50, 84 Cal.Rptr. 162 (1970), or custom, State ex rel. Thornton v. Hay, 254 Or. 584, 462 P.2d 671
(1969), as an alternative to application of the public trust doctrine. Archaic judicial responses
are not an answer to a modern social problem. Rather, we perceive the public trust doctrine
not to be “fixed or static,” but one to “be molded and extended to meet changing conditions
and needs of the public it was created to benefit.” Avon, 61 N.J. at 309, 294 A.2d 47.
Precisely what privately-owned upland sand area will be available and required to satisfy the
public’s rights under the public trust doctrine will depend on the circumstances. Location of
the dry sand area in relation to the foreshore, extent and availability of publicly-owned upland
sand area, nature and extent of the public demand, and usage of the upland sand land by the
owner are all factors to be weighed and considered in fixing the contours of the usage of the
upper sand.
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Today, recognizing the increasing demand for our State’s beaches and the dynamic nature of
the public trust doctrine, we find that the public must be given both access to and use of
privately-owned dry sand areas as reasonably necessary. While the public’s rights in private
beaches are not co-extensive with the rights enjoyed in municipal beaches, private landowners
may not in all instances prevent the public from exercising its rights under the public trust
doctrine. The public must be afforded reasonable access to the foreshore as well as a suitable
area for recreation on the dry sand.
Notes and Questions
1. Do the rights covered by the public trust doctrine preexist the state, or are they pure
creatures of law? When may courts change public trust rules? When they do so, are the
rules changing or is the court explaining that the rule “always” thus, but is only now
being announced? Does anything turn on this distinction? As we will see, how we
define such changes has implications on whether a property owner may claim that the
state is committing a constitutional violation by “taking” land without just
compensation.
2. When a court alters preexisting conceptions of the right to exclude should anything be
due to the property owner? Does your conception of what the public trust doctrine is
help determine your answer to this question?
3. Other theories of expanding public access rights. Courts have used other doctrines
to expand public access to private lands, including theories of prescriptive easements,
“implied dedication,” and customary uses. See generally 4 POWELL ON REAL PROPERTY
§ 34.11. As an example of implied dedication, the California Supreme Court declared:
Although ‘No Trespassing’ signs may be sufficient when only an occasional
hiker traverses an isolated property, the same action cannot reasonably be
expected to halt a continuous influx of beach users to an attractive seashore
property. If the fee owner proves that he has made more than minimal and
ineffectual efforts to exclude the public, then the trier of fact must decide
whether the owner’s activities have been adequate. If the owner has not
attempted to halt public use in any significant way, however, it will be held as a
matter of law that he intended to dedicate the property or an easement therein
to the public, and evidence that the public used the property for the prescriptive
period is sufficient to establish dedication.
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Gion v. City of Santa Cruz, 2 Cal. 3d 29, 41, 465 P.2d 50, 58 (1970). On custom, see,
e.g., City of Daytona Beach v. Tona-Rama, Inc., 294 So. 2d 73, 78 (Fla. 1974) (“The
general public may continue to use the dry sand area for their usual recreational
activities, not because the public has any interest in the land itself, but because of a
right gained through custom to use this particular area of the beach as they have
without dispute and without interruption for many years.”).
4. Politics! Do not overlook the role of the political process in questions of beach access.
Following the Gion ruling noted above, the California legislature enacted CAL. CIV.
CODE § 1009, which finds that “[o]wners of private real property are confronted with
the threat of loss of rights in their property if they allow or continue to allow members
of the public to use, enjoy or pass over their property for recreational purposes” and
that the “stability and marketability of record titles is clouded by such public use,
thereby compelling the owner to exclude the public from his property.” It therefore
provides that “no use of such property by the public after the effective date of this
section shall ever ripen to confer upon the public or any governmental body or unit a
vested right to continue to make such use permanently, in the absence of an express
written irrevocable offer of dedication of such property to such use.” Does the
availability of a legislative remedy if landowners organize and convince the legislature
to act suffice to address the concerns about cases like Matthews?
5. Conflicting uses. Once the public has the right of access to private land, what other
limits on private ownership follow? See, e.g., City of Daytona Beach v. Tona-Rama, Inc.,
294 So. 2d 73, 78 (Fla. 1974) (private landowner’s construction of tower on beach did
not interfere with customary public rights).
6. Public Policy. Are expansions of public access rights by the courts beneficial? What
kinds of incentives do they create? Consider the following criticism:
Commentators were severe in their criticism of Gion-Dietz, noting not only
departure from precedent, the failure to consider total loss to the owner, and
the prohibition of taking property without compensation, but also that the case
created an obvious inequity and would prove counterproductive to the public
policy espoused. [Citations of critical commentary omitted.]
The inequity addressed by commentators appears when weighing penalties
against rewards to landowners having no immediate use for their property so
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that permitting public use poses no interference or impairment. Those
landowners who were neighborly and hospitable in permitting public use were
penalized by Gion-Dietz by loss of their land, while those excluding the public
by fencing or other means were rewarded by retention of their exclusive use.
While virtue is usually its own reward, the law does not usually penalize the
virtuous. The decision was asserted to be counterproductive because
landowners to avoid prescriptive dedication would now exclude the public from
using open and unimproved property for recreation purposes. Thus the very
policy sought to be furthered would be defeated. (County of Orange v.
Chandler-Sherman Corp. (1976) 54 Cal.App.3d 561, 564, 126 Cal.Rptr. 765,
767, points out that one of the reactions to Gion-Dietz was “soaring sales of
chain link fences.”)
Cnty. of Los Angeles v. Berk, 26 Cal. 3d 201, 228-31, 605 P.2d 381, 398-401 (1980)
(Clark, J., dissenting). But expanding access offers benefits of its own:
The law of beach access in Hawaii has an enormous, incalculable impact on
social life. Though the law limits the property rights of beachfront owners as
they are defined elsewhere, it increases the wealth of every single person in the
state by giving them a right to go to the beach anywhere in the state. Everyone,
no matter how poor, has a backyard on the beach. Individuals and families go
the shore in the morning to swim or surf before work. Families gather to watch
the sun go down in the evening. Even if they only have a small apartment inland,
they have a right to sit outside on the beach wherever they please. It affects the
range of options people have, their daily routine, and the sense of satisfaction
of almost everyone.
Joseph William Singer, Property as the Law of Democracy, 63 DUKE L.J. 1287, 1329 (2014).
***
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