Where Property Ownership Originates From a Federal Patent, the Rules for an Easement by Necessity are Different (and May be Practically Impossible to Meet)
By Glen C. Hansen
In Murphy v. Burch, 2009 Cal. LEXIS 3983 (April 27, 2009, No. S159489), the California Supreme Court held that the common law elements of strict necessity and common ownership are only part of the showing that is required to establish an easement by necessity, where the common ownership is traced to the federal government. In such a case, a claimant must also prove congressional intent to reserve an access right-of-way, and the inability of the government to condemn an access easement.
In Murphy, Plaintiff’s real property was located next to Defendant’s property in Mendocino County. The only public road that ever existed in the vicinity of the properties is California State Highway 162. The sole means of vehicle access between Highway 162 and the Plaintiff’s property is a private road (the Access Road) that extends from the highway and crosses over the Defendant’s property and other privately owned land before entering the Plaintiff’s property.
Prior to 1876, the federal government owned both of the properties. From 1876 until 1929, the federal government deeded by patent the parcels that now made up the Defendant’s property to various private owners (which eventually were acquired by Defendant). The federal government conveyed these parcels without expressly reserving an easement over the Access Road to Highway 162 for the benefit of the parcels it retained, including Plaintiff’s property. In 1932, the federal government conveyed to Plaintiff’s predessor in interests the landlocked Plaintiff’s property by patent. That conveyance did not include any express grant of an easement over the Access Road.
In the Murphy case, Plaintiff filed an action seeking to quiet title to an easement over the Access Road located on Defendant’s property. Defendant also sought to quiet title and to permanently enjoin Plaintiff’s use of the Access Road. The trial court granted Plaintiff an easement by necessity. On appeal, the Court of Appeal reversed. The Supreme Court affirmed the Court of Appeal and denied the claim for an easement by necessity.
The Supreme Court recognized that the common law elements of an easement by necessity were satisfied in the case. Generally, an easement by necessity arises from an implied grant or implied reservation in certain circumstances when a property owner (the grantor) conveys to another (the grantee) one out of two or more adjoining parcels of the grantor's property. When there is no express provision for access, and the parcel conveyed is either landlocked entirely by the parcels retained by the grantor or landlocked partly by the grantor's retained land and partly by the land of others, the grantee may claim an implied grant of a right-of-way of necessity over the land retained by the grantor. Conversely, when the grantor conveys adjoining property without an express agreement for access to a retained parcel left landlocked, the grantor may seek an implied reservation of a right-of-way of necessity over the conveyed property for the retained parcel's benefit. An easement arises by implication where (1) there is strict necessity for the claimed right-of-way, as when the claimant's property is landlocked; and (2) both the property over which the easement is claimed, and the property that would benefit from the easement, were under common ownership at the time of the conveyance giving rise to the necessity.
Even though these common law elements were present in Murphy, the Court refused to find an easement by necessity for the benefit of the Plaintiff, because the common ownership in that case was the federal government, and because the properties were conveyed by federal patents. The Court noted that, in contrast to private party transfers, conveyances involving a sovereign as the common owner “typically do not give rise to implied reservations of easements or other property interests in conveyed land.” Thus, the Court held that, although easement-by-necessity claims tracing common ownership to the federal government is not categorically barred, “special considerations” determine whether such an easement will arise. Strict necessity and common ownership must still be shown; but “the intent of Congress is paramount and the government’s power of eminent domain also bears significance.” The Court explained:
[E]xtreme caution must be exercised in determining whether the circumstances surrounding a government land grant are sufficient to overcome the inference prompted by the omission of an express reference to a reserved right of access. In such cases, the easement claimant bears the burden of producing evidence on the issues regarding the government's intent to reserve an easement and the government's lack of power to condemn.
In Murphy, Plaintiff failed to satisfy that additional criteria. Plaintiff offered no legislative history demonstrating that Congress intended to imply a reservation of an easement under the federal statutes authorizing the patents at issue in the case. In fact, any implication of a reservation for access appeared to be negated by the circumstance that two of the statutes that granted the patents expressly provided for limited rights of reversion in the government, but omitted reservation of any other interest. Furthermore, Plaintiff also failed to show that the government lacked authority to condemn an easement along the Access Road to provide access to its own land if it deemed that doing so was necessary. Accordingly, neither the patents in the case, nor the circumstances surrounding their issuance, supported an implication that the federal government reserved a right of access over the Defendant’s property in 1929 when it conveyed that property while retaining the landlocked Plaintiff’s property. Thus, Plaintiff’s claim for an easement by necessity failed.
One has to wonder that although the Court did not categorically bar all easements by necessity where common ownership derives from the federal government; such easements would hardly ever exist under the Court’s test. It is theoretically possible that congressional intent to reserve an easement could be shown in a federal statute authorizing a land patent. But it is difficult to imagine a case where the federal government lacks the power to condemn an access easement to its landlocked property. Thus, it is unlikely that an easement of necessity could ever exist where common ownership derives from the federal government.
Glen C. Hansen is a senior associate at Abbott & Kindermann, LLP. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, LLP at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, LLP, nor the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.